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The 



NORTH CAROLINA 

REGISTER 



IN THIS ISSUE 



EXECUTIVE ORDERS 



IN ADDITION 

Voting Rights Act 
EHNR - Marine Fisheries 



PROPOSED RULES 
Agriculture 
Community Colleges 

Environment, Health, and Natural Resources 
Human Resources 
Insurance 
Labor 
Transportation 



LIST OF RULES CODHTED 



RRC OBJECTIONS 



CONTESTED CASE DECISIONS 






NOV 17 1994 

KATHRINE R- EVERETT 
LAW LIBRARY 



i 



ISSUE DATE: November 15, 1994 



Volume 9 • Issue 16 • Pages 1242 - 1339 



INFORMATION ABOUT THE NORTH CAROLINA REGISTER AND ADMINISTRATIVE CODE 



NORTH CAROLINA REGISTER 

The North Carolina Register is published twice a month and 
contains information relating to agency, executive, legislative and 
judicial actions required by or affecting Chapter 150B of the General 
Statutes. All proposed administrative rules and notices of public 
hearings filed under G.S. 1 50B-21 .2 must be published in the Register. 
The Register will typically comprise approximately fifty pages per 
issue of legal text. 

State law requires that a copy of each issue be provided free of 
charge to each county in the state and to various state officials and 
institutions. 

The North Carolina Register is available by yearly subscription at 
a cost of one hundred and five dollars ($105.00) for 24 issues. 
Individual issues may be purchased for eight dollars ($8.00). 

Requests for subscription to the North Carolina Register should be 
directed to the Office of Administrative Hearings, P. O. Drawer 27447, 
Raleigh, N.C. 27611-7447. 

ADOPTION, AMENDMENT, AND REPEAL OF 
RULES 

The following is a generalized statement of the procedures to be 
followed for an agency to adopt, amend, or repeal a rule. For the 
specific statutory authority, please consult Article 2A of Chapter 1 50B 
of the General Statutes. 

Any agency intending to adopt, amend, or repeal a rule must first 
publish notice of the proposed action in the North Carolina Register. 
The notice must include the time and place of the public hearing (or 
instructions on how a member of the public may request a hearing); a 
statement of procedure for public comments; the text of the proposed 
rule or the statement of subject matter; the reason for the proposed 
action; a reference to the statutory authority for the action and the 
proposed effective date. 

Unless a specific statute provides otherwise, at least 15 days must 
elapse following publication of the notice in the North Carolina 
Register before the agency may conduct the public hearing and at least 
30 days must elapse before the agency can take action on the proposed 
rule. An agency may not adopt a rule that differs substantially from the 
proposed form published as part of the public notice, until the adopted 
version has been published in the North Carolina Register for an 
additional 30 day comment period. 

When final action is taken, the promulgating agency must file the 
rule with the Rules Review Commission (RRC). After approval by 
RRC, the adopted rule is filed with the Office of Administrative 
Hearings (OAH). 

A rule or amended rule generally becomes effective 5 business 
days after the rule is filed with the Office of Administrative Hearings 
for publication in the North Carolina Administrative Code (NCAC). 

Proposed action on rules may be withdrawn by the promulgating 
agency at any time before final action is taken by the agency or before 
filing with OAH for publication in the NCAC. 



TEMPORARY RULES 

Under certain emergency conditions, agencies may issue te: 
rary rules. Within 24 hours of submission to OAH, the Codifi 
Rules must review the agency's written statement of findings of 
for the temporary rule pursuant to the provisions in G.S. 1 50B-21 
the Codifier determines that the findings meet the criteria in 
150B-21.1, the rule is entered into the NCAC. If the Gx 
determines that the findings do not meet the criteria, the rule is reh 
to the agency. The agency may supplement its findings and rest 
the temporary rule for an additional review or the agency may res 
that it will remain with its initial position. The Codifier, thereafter 
enter the rule into the NCAC. A temporary rule becomes effe 
either when the Codifier of Rules enters the rule in the Code or o 
sixth business day after the agency resubmits the rule without ch 
The temporary rule is in effect for the period specified in the rule o 
days, whichever is less. An agency adopting a temporary rule 
begin rule-making procedures on the permanent rule at the same 
the temporary rule is filed with the Codifier. 



NORTH CAROLINA ADMINISTRATIVE COD 



The North Carolina Administrative Code (NCAC) is a compil 
and index of the administrative rules of 25 state agencies ai 
occupational licensing boards. The NCAC comprises approxin 
15,000 letter size, single spaced pages of material of which apf 
mately 35% is changed annually. Compilation and publication 
NCAC is mandated by G.S. 150B-21.18. 

The Code is divided into Titles and Chapters. Each state agei 
assigned a separate title which is further broken down by cha 
Title 21 is designated for occupational licensing boards. 

The NCAC is available in two formats. 

(1) Single pages may be obtained at a minimum cost o 
dollars and 50 cents ($2.50) for 10 pages or less, plus fi 
cents ($0.15) per each additional page. 

(2) The full publication consists of 53 volumes, totali 
excess of 15,000 pages. It is supplemented monthly 
replacement pages. A one year subscription to th 
publication including supplements can be purchase 
seven hundred and fifty dollars ($750.00). Individua 
umes may also be purchased with supplement servia 
newal subscriptions for supplements to the initial public 
are available. 

Requests for pages of rules or volumes of the NCAC shot 
directed to the Office of Administrative Hearings. 

CITATION TO THE NORTH CAROLINA 
REGISTER 



The North Carolina Register is cited by volume, issue 
number and date. 1:1 NCR 101-201, April 1, 1986 refers to V< 
1 , Issue 1 , pages 101 through 201 of the Afort/i Carolina Registeri 
on April 1, 1986. 



FOR INFORMATION CONTACT: Office of Administra- 
tive Hearings, ATTN: Rules Division, P.O. Drawer 27447, 
Raleigh, North Carolina 2761 1-7447, (919) 733-2678. 



NORTH 
CAROLINA 
REGISTER 




Office of Administrative Hearings 

P. O. Drawer 27447 

Raleigh, North Carolina 27611-7447 

(919) 733-2678 



Julian Mann in, 

Director 
James R. Scarcella St., 

Deputy Director 
Molly Masich, 

Director ofAPA Services 



Staff: 

Ruby Creech, 

Publications Coordinator 
Teresa Kilpatrick, 

Editorial Assistant 
Jean Shirley, 

Editorial Assistant 

This publication is printed on permanent, 
acid-free paper in compliance with 
G.S. 125-11.13. 



ISSUE CONTENTS 



I. EXECUTIVE ORDERS 

Executive Orders 64-65 1242 

n. IN ADDITION 

Voting Rights Act 1243 

EHNR - Marine Fisheries 1244 

m. PROPOSED RULES 
Agriculture 

Plant Industry 1245 

Community Colleges 
Community Colleges 1305 

Environment, Health, and 
Natural Resources 

Coastal Management 1283 

Environmental Management .... 1261 

Solid Waste Management 1287 

Wildlife Resources 1285 

Human Resources 
Medical Assistance 1247 

Insurance 
Actuarial Services Division .... 1257 
Life and Health Division 1255 

Labor 
OSHA 1258 

Transportation 
Highways, Division of .... 1300 

IV. LIST OF RULES CODIFIED . . 1306 

V. RRC OBJECTIONS 1310 

VI. CONTESTED CASE DECISIONS 

Index to AU Decisions 1313 

Text of Selected Decisions 

94 EDC 0653 1326 

94 INS 0028 1331 

Vn. CUMULATIVE INDEX 1337 



NORTH CAROLINA REGISTER 

Publication Schedule 

(November 1994 - September 1995) 



Volume 
and 
Issue 

Number 


Issue 
Date 


Last Day 
for 

Filing 


Last Day 
for Elec- 
tronic 
Filing 


Earliest 

Date for 

Public 

Hearing 

75 days 

from 

notice 


* End of 

Required 

Comment 

Period 

30 days 

from 

notice 


Last Day 

to Submit 

toRRC 


** Earliest 

Effective 

Date 


9:15 


11/01/94 


10/11/94 


10/18/94 


11/16/94 


12/01/94 


12/20/94 


02/01/95 


9:16 


11/15/94 


10/24/94 


10/31/94 


11/30/94 


12/15/94 


12/20/94 


02/01/95 


9:17 


12/01/94 


11/07/94 


11/15/94 


12/16/94 


01/03/95 


01/20/95 


03/01/95 


9:18 


12/15/94 


11/22/94 


12/01/94 


12/30/94 


01/17/95 


01/20/95 


03/01/95 


9:19 


01/03/95 


12/08/94 


12/15/94 


01/18/95 


02/02/95 


02/20/95 


04/01/95 


9:20 


01/17/95 


12/21/94 


12/30/94 


02/01/95 


02/16/95 


02/20/95 


04/01/95 


9:21 


02/01/95 


01/10/95 


01/18/95 


02/16/95 


03/03/95 


03/20/95 


05/01/95 


9:22 


02/15/95 


01/25/95 


02/01/95 


03/02/95 


03/17/95 


03/20/95 


05/01/95 


9:23 


03/01/95 


02/08/95 


02/15/95 


03/16/95 


03/31/95 


04/20/95 


06/01/95 


9:24 


03/15/95 


02/22/95 


03/01/95 


03/30/95 


04/17/95 


04/20/95 


06/01/95 


10:1 


04/03/95 


03/13/95 


03/20/95 


04/18/95 


05/03/95 


05/22/95 


07/01/95 


10:2 


04/17/95 


03/24/95 


03/31/95 


05/02/95 


05/17/95 


05/22/95 


07/01/95 


10:3 


05/01/95 


04/07/95 


04/17/95 


05/16/95 


05/31/95 


06/20/95 


08/01/95 


10:4 


05/15/95 


04/24/95 


05/01/95 


05/30/95 


06/14/95 


06/20/95 


08/01/95 


10:5 


06/01/95 


05/10/95 


05/17/95 


06/16/95 


07/03/95 


07/20/95 


09/01/95 


10:6 


06/15/95 


05/24/95 


06/01/95 


06/30/95 


07/17/95 


07/20/95 


09/01/95 


10:7 


07/03/95 


06/12/95 


06/19/95 


07/18/95 


08/02/95 


08/21/95 


10/01/95 


10:8 


07/14/95 


06/22/95 


06/29/95 


07/31/95 


08/14/95 


08/21/95 


10/01/95 


10:9 


08/01/95 


07/11/95 


07/18/95 


08/16/95 


08/31/95 


09/20/95 


11/01/95 


10:10 


08/15/95 


07/25/95 


08/01/95 


08/30/95 


09/14/95 


09/20/95 


11/01/95 


10:11 


09/01/95 


08/11/95 


08/18/95 


09/18/95 


10/02/95 


10/20/95 


12/01/95 


10:12 


09/15/95 


08/24/95 


08/31/95 


10/02/95 


10/16/95 


10/20/95 


12/01/95 



This table is published as a public service, and the computation of time periods are not to be deemed binding 
or controlling. Time is computed according to 26 NCAC 2B .0103 and the Rules of Civil Procedure, Rule 
6. 

* An agency must accept comments for at least 30 days after the proposed text is published or until the date 

of any public hearing, whichever is longer. See G.S. 150B-21. 2(f) for adoption procedures. 

** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above, 

that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and 

that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st day of the next calendar 

month. 

Revised 10/94 



EXECUTIVE ORDERS 



EXECUTIVE ORDER NO. 64 

AMENDING EXECUTIVE ORDER 

NUMBER 32 CONCERNING THE 

GOVERNOR'S ADVISORY COMMISSION 

ON MILITARY AFFAIRS 

By the authority vested in me as Governor by the 
laws and Constitution of North Carolina, IT IS 
ORDERED: 

Section 4 of Executive Order Number 32 is 
hereby amended to read: 

Section 4. Administration. 

Support staff for the Commission shall be provid- 
ed by the Office of the Governor. Members shall 
serve without compensation, but may receive 
reimbursement, contingent upon the availability of 
funds, for travel and subsistence in accordance 
with N.C.G.S. 138-5, 138-6, and 120-3.1. 

This Executive Order shall be effective immedi- 
ately. 

Done in Raleigh, North Carolina, this the 20th 
day of October, 1994. 

EXECUTIVE ORDER NO. 65 

AMENDING THE LOCAL 

GOVERNMENT PARTNERSHIP COUNCIL 

By the authority vested in me as Governor by the 
laws and Constitution of North Carolina, TT IS 
ORDERED: 



(d) two members of the North Carolina 
Senate appointed by the President Pro 
Tempore of the Senate; 

(e) two members of the North Carolina 
House of Representatives appointed by 
the Speaker of the House; 

(f) the Secretary of the Department of Envi- 
ronment, Health, and Natural Resources 
or his designee; 

(g) the Secretary of the Department of Trans- 
portation or his designee; 

(h) the Secretary of the Department of Hu- 
man Resources or his designee; 
(i) the Lieutenant Governor or his designee; 
(j) the Secretary of the Department of Reve- 
nue or her designee; 
(k) the State Treasurer or his designee; 
(1) the State Auditor or his designee; and 
(m) the Secretary of State or his designee. 

The Executive Director of the North Carolina 
Association of County Commissioners and the 
Executive Director of the North Carolina League 
of Municipalities are invited to serve, and the 
Governor's Director of Intergovernmental Rela- 
tions shall serve, as ex-officio members of the 
Council. 

This Order shall become effective immediately. 

Done in the Capital City of Raleigh, North 
Carolina, this the 20th day of October, 1994. 



Section 1 of Executive Order Number 21 is 
hereby amended to read: 

Section 1. Establishment and Members. 



There is hereby established the North Carolina 
Local Government Partnership Council ("Council") 
consisting of 25 members. The Council shall be 
composed as follows: 
(a) three members representing county gov- 
ernments selected by the Governor from 
a list of qualified persons submitted by 
the North Carolina Association of County 
Commissioners; 

three members representing municipal 
governments selected by the Governor 
from a list of qualified persons submitted 
by the North Carolina League of Munici- 
palities; 

four at-large members appointed by the 
Governor; 



(b) 



(c) 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1242 



IN ADDITION 



1 his Section contains public notices that are required to be published in the Register or have been 
approved by the Codifier of Rules for publication. 



U.S. Department of Justice 

Civil Rights Division 

DLP:GS:FHD:lrj Voting Section 

DJ 166-012-3 P.O. Box 66128 

94-3411 Washington, DC. 20035-6128 

October 18, 1994 

George A. Weaver, Esq. 

Lee, Reece & Weaver 

P. O. Box 2047 

Wilson, North Carolina 27894-2047 

Dear Mr. Weaver: 

This refers to three polling place changes (Toisnot, Wilson I, and Taylor precincts) for Wilson 
County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act 
of 1965, as amended, 42 U.S.C. 1973c. We received your submission on August 19, 1994. 

The Attorney General does not interpose any objection to the specified changes. However, we note 
that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent 



litigation tc 
(28 C.F.R. 


) enjoin 
51.41). 


the enforcement of the changes. See the Procedures for the Administration of Section 5 






Sincerely, 








- 


Deval L. Patrick 

Assistant Attorney General 

Civil Rights Division 

By: 

John K. Tanner 
Acting Chief, Voting Section 


- 




1243 




NORTH CAROLINA REGISTER November 15, 


1994 


9:16 



IN ADDITION 



TITLE 15A - DEPARTMENT OF ENVIRONMENT, HEALTH, AND 
NATURAL RESOURCES 



CHAPTER 3 - MARINE FISHERIES 



.Notice is hereby given that the Marine Fisheries Commission will conduct a Business Session on December 
2-3, 1994, at the Smithfield-Selma Chamber of Commerce, Industrial Parkway, Smithfield, North Carolina. 
Notice of this meeting was previously published in 9:11 NCR, 9:13 NCR, and 9:14 NCR. Only the location 
of the meeting has changed; the date and time will remain the same. 



9:16 NORTH CAROLINA REGISTER November 15, 1994 1244 



PROPOSED RULES 



TITLE 2 - DEPARTMENT OF 
AGRICULTURE 

l\otice is hereby given in accordance with G.S. 
150B-21.2 that the Genetic Engineering Review 
Board intends to amend rule cited as 2 NCAC 48E 
.0302. 

1 he proposed effective date of this action is 
February 1, 1995. 

1 he public hearing will be conducted at 10:00 
a.m. on December 19, 1994 at the Rollins Animal 
Disease Diagnostic Laboratory, Conference Room 
- Room #154, 2101 Blue Ridge Blvd. , Raleigh, NC 
27607. 

iXeason for Proposed Action: To expand the list 
of activities permitted without the issuance of an 
individual permit. 

Lsomment Procedures: Interested persons may 
present statements either orally or in writing at the 
public hearing or in writing prior to the hearing by 
mail addressed to W. A. Dickerson, Plant Pest 
Administrator, Plant Industry Division, N. C. 
Department of Agriculture, P.O. Box 27647, 
Raleigh, NC 27611. Further information on the 
proposed rule may be obtained by contacting Mr. 
Dickerson at the above address or calling (919) 
733-6930. 

Ejditor's Note: Subparagraph (a)(5) of this Rule 
was published in 9:3 NCR 127-128, May 2, 1994, 
to become effective January 1, 1995. 

CHAPTER 48 - PLANT INDUSTRY 

SUBCHAPTER 48E - GENETICALLY 
ENGINEERED ORGANISMS 

SECTION .0300 - TYPES OF PERMITS: 
PERMIT APPLICATIONS: 

PUBLIC NOTICE: PUBLIC HEARING: 
ISSUANCE OF PERMITS: MODIFICATION, 
SUSPENSION, REVOCATION OF PERMITS 

.0302 GENERAL PERMITS 

(a) The following classes of activities are hereby 
permitted by general permits and no permit appli- 
cation shall be required: 



(1) Releases of genetically engineered 
organisms between July 1, 1990 and 
December 31, 1990, which are other- 
wise in compliance with state and feder- 
al law; 

(2) Releases resulting wholly from activi- 
ties performed inside contained facili- 
ties; 

(3) Releases of genetically engineered 
organisms from fermentation processes 
and associated recovery and purification 
processes where the processes or prod- 
ucts of those processes are regulated 
under the Food, Drug, and Cosmetic 
Act, 21 U.S.C. 301 et seq., Toxic 
Substances Control Act, 15 U.S.C. 
2601 et seq., or Virus-Serum-Toxin 
Act, 21 U.S.C. 151 et seq.; 

(4) Releases or commercial uses of drugs 
or devices containing genetically engi- 
neered organisms and intended for 
prophylactic, therapeutic or diagnostic 
use in humans where such releases or 
uses are regulated under the Food, 
Drug, and Cosmetic Act, 21 U.S.C. 
301 et seq., or the Public Health Ser- 
vice Act, 42 U.S.C. 262, 263; 

(5) Releases or commercial uses of those 
genetically engineered plants deter- 
mined to be of nonregulated status 
under provisions of 7 CFR Part 340 
(§340.6) by the Director, Biotechnolo- 
gy, Biologies, and Environmental Pro- 
tection; Animal and Plant Health In 
spection Service; United States Depart 
ment of Agriculture as of August 1 

1994ri 

(6) Releases or commercial uses of those 

plants 



engineered 



deter- 



genetically 

mined to be of nonregulated status 



LM 



under provisions of 7 CFR Part 34C 
(§340.6) by the Director, Biotechnolo- 
gy, Biologies, and Environmental Pro- 
tection; Animal and Plant Health In; 
spection Service; United States Depart- 
ment of Agriculture, 
provided that the North Carolin; 



Department of Agriculture mails i 
copy of the Federal Register notice 



announcing that the Animal and Plan 



Health Inspection Service has receive* 



a "Petition for Determination of Non 



regulated Status" submitted accordins 



to 7 CFR Part 340 (§340.6) to an) 
person who has filed a written reques 



1245 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:11 



PROPOSED RULES 



to be notified of actions taken by the 
Board within ten business days after 
receipt of the Federal Register notice 
except for those petitions pending as 
of August 1. 1994; and 

(B) provided that a copy of the "Petition 
for Determination of Nonregulated 
Status" submitted to the Animal and 
Plant Health Inspection Service ac- 
cording to 7 CFR Part 340 (§340.6) is 
on file and available for inspection at 
the North Carolina Department of 
Agriculture. Plant Industry Division, 
216 West Jones Street, Raleigh, North 
Carolina no later than ten business 
days after receipt of the Federal Reg- 
ister notice announcing receipt of the 
petition by the Animal Plant Health 
Inspection Service that initiates the 60 
day federal comment period on the 
petition: and 

(C) provided that the Board does not 
object to the determination of non- 
regulated status; 

(7) Releases of genetically engineered 
plants where the genetically engineered 
plants meet all of the following eligibil- 
ity requirements, the release is done in 
compliance with all of the following 
performance standards, and all federal 
requirements pertaining to notification 
are met: 
(A) Eligibility requirements: 

£i) The genetically engineered plant 
is one of the following plant 
species: 



IB 

an 

am 
av) 

(VD 

iiii 



corn (Zea mays L.); 

cotton (Gossypium hirsutum 

Lai 

potato (Solanum tubersom L.); 
soybean (Glycine max fL.l 
Merr.); 
tobacco 



(Nicotiana tabacum 



tomato 



(Lycopersicon 
esculentum L.). 
The introduced genetic material is 
"stably integrated" in the plant 
genome, as defined in 7 CFR Part 
340 (§340.1). 

(iii) The function of the introduced 
genetic material is known and its 
expression in the regulated article 
does not result in plant disease. 

(iv) The introduced genetic material 



does not: 
(I) Cause the production of an 

infectious entity, or 
(II) Encode substances that are 
known or likely to be toxic to 
non-target organisms known or 
likely to feed or live on the 
plant species, or 
(HI) Encode products intended for 
pharmaceutical use. 
(v) To ensure the introduced genetic 
sequences do not pose a 
significant risk of the creation of 
any new plant virus, they must 
be: 
(I) Noncoding regulatory 
sequences of known function, 
or 
(II) Sense or anti sense genetic 
constructs derived from viral 
coat protein genes from plant 
viruses that are prevalent and 
endemic in the area where the 
introduction will occur and 
that infect plants of the same 
host species, or 
(III) Anti sense genetic constructs 
derived from noncapsid viral 
genes from plant viruses that 
are prevalent and endemic in 
the area where the introduction 
will occur and that infect 
plants of the same host 
species, 
(vi) The plant has not been modified 
to contain the following genetic 
material from animal or human 
pathogens: 
(I) Any nucleic acid sequence 
derived from an animal or 
human virus, or 
(II) Coding sequences whose 
products are known or likely 
causal agents of disease in 
animals or humans. 
(B) Performance standards: 

(i) The genetically engineered plants 
must be planted in such a way 
that they are not inadvertently 
mixed with nonregulated plant 
materials of any species which are 
not part of the release. 
(ii) The genetically engineered plants 
and plant parts must be 
maintained in such a way that the 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1246 



PROPOSED RULES 



(hi 



identity of all material is known 
while it is m use, and the plant 
parts must be contained or devi- 
talized when no longer in use. 
There must be no viable vector 
agent associated with the geneti- 
cally engineered plant. 
The release must be conducted 
such that: 



(T) The genetically engineered 
plant will not persist in the 
environment, and 
(II) No offspring can be produced 
that could persist in the envi- 
ronment. 
(v) Upon termination of the release: 
(D No viable material shall re- 
main which is likely to volun- 
teer in subsequent seasons, or 
(II) Volunteers shall be managed to 
prevent persistence in the 
environment. 

(b) In accordance with the Administrative 
Procedure Act, the Commissioner may suspend 
any activities being conducted under a general 
permit for failure to comply with the Genetically 
Engineered Organisms Act or any rules of this 
Subchapter, or if the Commissioner deems it 
necessary to protect agriculture, public health or 
the environment from potential adverse effects of 
a release or commercial use. Any such suspension 
shall be reviewed by the Board within 30 days. 
The Commissioner shall state in writing the rea- 
sons for such action. 

(c) Public notice of any proposed rule regarding 
the establishment of general permits shall be given 
in accordance with G.S. 150B-21.2 and by: 

(1) mailing a copy of the proposed general 
permit to any person who has filed a 
written request to be so notified; 

(2) publishing notice of the proposed gener- 
al permit at least once in newspapers 
having general circulation throughout 
the State. 

Statutory Authority G.S. 106-770. 

TITLE 10 - DEPARTMENT OF 
HUMAN RESOURCES 

ISotice is hereby given in accordance with G.S. 
150B-21.2 that DHR - Division of Medical Assis- 
tance intends to repeal rule cited as 10 NCAC 26B 
.0119. 



Ihe proposed effective date of this action is 
February 1, 1995. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days q) 
notice): A demand for a public hearing must be 
made in writing and mailed to: 

APA Coordinator 

Division of Medical Assistance 

1985 Umstead Drive 

Raleigh, NC 27603 

ixeason for Proposed Action: This rule shoulc 
have been repealed when 10 NCAC 26M was 
adopted, effective August 3, 1992. Now this rule 
is in conflict with 10 NCAC 26M. 

(comment Procedures: Written comments con 
ceming this repeal must be submitted by December 
15, 1994 to: APA Coordinator 

Division of Medical Assistance 

1985 Umstead Drive 

Raleigh, NC 27603 

CHAPTER 26 
MEDICAL ASSISTANCE 

SUBCHAPTER 26B - MEDICAL 
ASSISTANCE PROVIDED 

SECTION .0100 - GENERAL 

.0119 HEALTH MAINTENANCE 
ORGANIZATIONS AND 
PREPAID HEALTH PLANS 

(a) — The Division of Medical Assistance wil' 



cover services provided by Health Maintcnanct 
Organizations and Prepaid Health Plans to Medio 



aid recipients who ore eligible to enroll. — Hcaltl 



Maintenance — Organizat ions — must — be — federally 



qualified or meet the state definition of a Hcaltl 



Maintenance Organization as — specified in G.S 
STft — Prepaid Health Plans must comply wit! 



federal regulation s . 



{b) Health — Maintenance — Organizations one 



Prepaid Health Plans which provide scrvicco h 
Medicaid cnrollec s mu s t have a contract with th t 
Division of Medical Assistance. 



{e) — Medicaid cnrollecs of Health Maintenanc e 



Organization s and Prepaid Health Plans arc limits 
to individuals who arc eligible to receive AFDC 
payments. 



1247 



NORTH CAROLINA REGISTER 



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9:lt 



PROPOSED RULES 



Statutory Authority G.S. 108A-25(b); 108A-54; 
S.L. 1985, c.749, s.86; 42 C.ER. Part 434. 

****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that DHR - Division of Medical Assis- 
tance intends to adopt rules cited as 10 NCAC 26H 
. 0210 - . 0222, with changes from the proposed text 
noticed in the Register, Volume 9, Issue 8, pages 
513 - 525. 

Ihe proposed effective date of this action is 
February 1, 1995. 

Ixeason for Proposed Action: These rules have 
been substantially changed as a result of public 
comment. These rules establish the Diagnostic 
Related Grouping Hospital Inpatient Reimburse- 
ment Plan. 

i^omment Procedures: Written comments con- 
cerning these proposed adoptions must be submit- 
ted by December 15, 1994 to: 

APA Coordinator 

Division of Medical Assistance 

1985 Umstead Drive 

Raleigh, NC 27603 

tlidtior's Note: An agency may not adopt a rule 
that differs substantially from the text of a pro- 
posed rule published in the Register, unless the 
agency publishes the text of the proposed differ- 
ent rule and accepts comments on the new text 
for at least 30 days after the publication of the 
new text. 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26H - REIMBURSEMENT 
PLANS 

SECTION .0200 - HOSPITAL 
INPATIENT REIMBURSEMENT PLAN 

.0210 REIMBURSEMENT PRINCIPLES 

Effective for discharges occurring on or after 
January 1^ 1995 acute care general hospital inpa- 
tient services shall be reimbursed using a Diagno- 
sis Related Groups (DRG) system, except as noted 
in Rule .0212 of this Section. 



Authority G.S. 108A-25(b); 108A-54; 108A-55; 42 
C.F.R. 447, Subpart C. 

.0211 DRG RATE SETTING 
METHODOLOGY 

(a) Diagnosis Related Groups is a system of 
classification for hospital inpatient services. For 
each hospital admission, a single DRG category is 
assigned based on the patient's diagnoses, ape, 
procedures performed, length of stay, and dis- 
charge status. For claims with dates of services 
prior to January 1, 1995 payments shall be based 
on the reimbursement per diem in effect prior to 
January _L 1995. However, for claims related to 
services where the admission was prior to January 
1, 1995 and the discharge was after December 31. 
1994. then the greater of the total per diem for 
services rendered prior to January J^ 1995, or the 
appropriate DRG payment shall be made. 

(b) The Division of Medical Assistance (Divi- 
sion) uses the DRG assignment logic of the Medi- 
care Grouper to assign individual claims to a DRG 
category. Medicare revises the Grouper each year 
in October. The Division shall install the most 
recent version of the Medicare Grouper imple- 
mented by Medicare. 

The initial DRG in Version 12 of the Medicare 
Grouper, related to the care of premature neonates 
and other newborns numbered 385 through 391, 
are replaced with the following classifications: 



385 

801 
802 
803 
804 

805 
810 



Neonate, died or transferred. 



length of stay less than 3 days. 

Birthweight less than 1 .000 grams 

Birthweight 1 ,000 - 1 .499 grams 

Birthweight 1 .500 - 1 ,999 grams 

Birthweight > =2.000 grams, 
with Respiratory Distress 
Syndrome 

Birthweight > = 2,000 grams, 
premature with major problems 

Neonate with low birthweight 
diagnosis, age greater than 28 
days at admission 



389 Birthweight > = 2,000 grams, 
full term with major problems 

390 Birthweight > = 2,000 grams. 



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NORTH CAROLINA REGISTER 



November 15, 1994 



1248 



PROPOSED RULES 



391 



full term with other problems or 
premature without major problems 

Birthweight > = 2,000 grams, 
full term without complicating 
diagnoses 



(c) DRG relative weights are a measure of the 
relative resources required in the treatment of the 
average case falling within a particular DRG 
category. The average DRG weight for a group of 
services, such as all discharges from a particular 
hospital or all North Carolina Medicaid discharg- 
es, is known as the Case Mix Index (CMI) for that 
group. 

The Division establishes relative weights for each 
utilized DRG based on a recent data set of histori- 
cal claims submitted for Medicaid recipients- 
Charges on each historical claim are converted to 
estimated costs by applying the cost conversion 
factors from each hospital's submitted Medicare 
cost report to each billed line item. Cost estimates 
are standardized by removing direct and indirect 
medical education costs at the appropriate rates for 
each hospital. 

Relative weights are calculated as the ratio of the 
average cost in each DRG to the overall average 
cost for all DRGs combined. Prior to calculating 
these averages, low statistical outlier claims are 
removed from the data set, and the costs of claims 
identified as high statistical outliers are ca pped at 
the statistical outlier threshold. The Division of 
Medical Assistance employs criteria for the identi- 
fication of statistical outliers which are expected to 
result in the highest number of DRGs with statisti- 
cally stable weights. 

The Division of Medical Assistance employs a 
statistically valid methodology to determine wheth- 
er there are a sufficient number of recent claims to 
establish a stable weight for each DRG. For 
DRGs lacking sufficient volume, the Division sets 
relative weights using DRG weights generated 
from the North Carolina Medical Data Base 
Commission's discharge abstract file covering aH 
inpatient services delivered in North Carolina 
hospitals. For DRGs in which there are an insuffi- 
cient number of discharges in the Medical Data 
Base Commission data set, the Division sets 
relative weights based upon the published DRG 
weights for the Medicare program . 

Relative weights will be recalculated whenever a 
new version of the DRG Grouper is installed by 
the Division of Medical Assistance. When relative 
weights are recalculated, the overall average CMI 
will be kept constant. 



(d) The Division of Medical Assistance estab- 



lishes a unit value for each hospital which repre- 



sents the DRG payment rate for a DRG with a 
relative weight of one. This rate is established as 
follows: 



LO 



121 



14} 



15) 



Using the methodology described ir 
Paragraph (c) of this Rule, the Divisior 



estimates the cost less direct and indi 



rect medical education expense oi 
claims for discharges occurring during 



calendar year 1993. using cost report 



for hospital fiscal years ending during 



that period or the most recent cos 
report available. All cost estimates ait 
adjusted to a common 1994 fiscal yeai 
and inflated to the 1995 rate year. The 
average cost per discharge for eacl 
provider is calculated- 
Using the DRG weights to be effectivj 



on January J^ 1995, a CMI is calculat 



ed for each hospital for the same popu 



lation of claims used to develop the cos 



per discharge amount in Subparagrapl 
(d)(1) of this Rule. Each hospital' 



average cost per discharge is divided bj 



its CMI to get the cost per discharg* 



for a service with a DRG weight o 

one. 

(3) The amount calculated in Subparagrapl 



(d)(2) of this Rule is reduced by 7.2 
to account for outlier payments. 
Hospitals are ranked in order of in 
creasing CMI adjusted cost per dis 
charge. The DRG Unit Value fo 
hospitals at or below the 45th percentili 



in this ranking is set using 75% of th 
hospital's own adjusted cost per dis 
charge and 25% of the cost per dis 
charge of the hospital at the 45th per 
centile. The DRG Unit Value fo 
hospitals ranked above the 45th percen 



tile is set at the cost per discharge o 
the 45th percentile hospital. 
The hospital unit values calculated i 
Subparagraph (d)(4) of this Rule sha 
be updated annually by the Nation 



Hospital Market Basket Index and th 
most recent actual and projected co; 
data available from the North Carolin 



Office of State Budget and Manage 

ment. 

(e) Reimbursement for capital expense is indue 



ed in the DRG hospital rate described in Paragrap 

(d) of this Rule. 

(f) Hospitals operating Medicare approve 



1249 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:1 



PROPOSED RULES 



graduate medical education programs shall receive 
a DRG payment rate adjustment which reflects the 
reasonable direct and indirect costs of operating 
those programs. 

(1) The Division defines reasonable direct 
medical education costs consistent with 
the base year cost per resident method- 
ology described in 42 CFR 413.86. 
The ratio of the aggregate approved 
amount for graduate medical education 
costs at 42 CFR 413.86 (d) (1) to total 
reimbursable costs (per Medicare prin- 
ciples) is the North Carolina Medicaid 
direct medical education factor. The 
direct medical education factor is based 
on information su pplied in the 1993 
cost reports updated annually based on 
statistics contained in cost reports filed 
during the previous year. 

(2) The North Carolina Medicaid indirect 
medical education factor is computed 
by the following formula: 

1MLL1 ± E} — ill 
where R equals the number of approved 
full time equivalent residents divided by 
the number of staffed beds, not includ- 
ing nursery beds. The indirect medical 
education factor will be updated annual- 
ly_ based on statistics contained in cost 
reports filed during the previous year. 
£3} Hospitals operating an a pproved gradu- 
ate medical education program shall 
have their DRG unit values increased 
by the sum of the direct and indirect 
medical education facto ra- 
te) Cost outlier payments are an additional 
payment made at the time a claim is processed for 



exceptionally costly services. These payments are 



subject to retrospective review by the Division of 



Medical Assistance. Cost Outlier payments may 



be reduced if the associated cost is found to be 
unreasonable based on the preponderance of 



evidence of a case by case review. 



(1) A cost outlier threshold is established 
for each DRG at the time DRG relative 
weights are calculated, using the same 
information used to establish those 
relative weights. The cost threshold is 
the greater of twenty-five thousand 
dollars ($25.000) or mean cost for the 
DRG plus 1.96 standard deviations. 

(2) Charges for non-covered services and 
services not reimbursed under the inpa- 
tient DRG methodology (such as pro- 



billed charges. The remaining billed 
charges are converted to cost using a 
hospital specific cost to charge ratio. 
The cost to charge ratio excludes medi- 
cal education costs. 
(3) If the net cost for the claim exceeds the 
cost outlier threshold, a cost outlier 
payment is made at 75% of the costs 
above the threshold, 
(h) Day outlier payments are an additional 
payment made for exceptionally long lengths of 
stay on services provided to children under six at 
disproportionate share hospitals and children under 
age one at non-disproportionate share hospitals. 
These payments are subject to retrospective review 
by the Division of Medical Assistance. Day 
outlier payments maybe reduced if the associated 
cost is found to be unreasonable based on the 
preponderance of evidence of a case by case 
review. 

(1) A day outlier threshold is established 
for each DRG at the time DRG relative 
weights are calculated, using the same 
information used to establish the rela- 
tive weights. The day outlier threshold 
is the greater of 30 days or the arith- 
metical average length of stay for the 
DRG plus 1.96 standard deviations. 

(2) A day outlier per diem payment may be 
made for covered days in excess of the 
day outlier threshold at 75% of the 
hospital's payment rate for the DRG 
rate divided by the DRG average length 
stay. 

£i] Services which qualify for both cost outlier 
and day outlier payments under this rule shall 
receive the greater of the cost outlier or day outlier 
payment. 

Authority G.S. 108A-25(b); 108A-54; 108A-55; 42 
CFR. 447, Subpart C. 

.0212 EXCEPTIONS TO DRG 
REIMBURSEMENT 

(a) Covered psychiatric and rehabilitation inpa- 
tient services provided in either specialty hospitals. 
Medicare recognized distinct part units (DPU). or 
other beds in general acute care hospitals shall be 
reimbursed on a rjer diem methodology. 

(1) For the purposes of this Section, psy- 
chiatric inpatient services are defined as 
admissions where the primary reason 
for admission would result in the as- 
signment of DRGs in the range 424 





fessional fees) are deducted from total 


through 432 and 436 through 437. 


9:16 


NORTH CAROLINA REGISTER 


November 15, 1994 1250 



PROPOSED RULES 



For the purposes of this Section, reha- 
bilitation inpatient services are defined 
as admissions where the primary reason 
for admissions would result in the 
assignment of DRG 462. All services 
provided by specialty rehabilitation 
hospitals are presumed to come under 
this definition. 

(2) When a patient has a medically appro- 
priate transfer from a medical or surgi- 
cal bed to a psychiatric or rehabilitative 
distinct part unit within the same hospi- 
tal, the admission to the distinct part 
unit shall be recognized as a separate 
service which is eligible for reimburse- 
ment under the per diem methodology. 
Transfers occurring in general hospitals 
from acute care services to non-DPU 
psychiatric or rehabilitation services are 
not eligible for reimbursement under 
this Section. The entire hospital stay in 
these instances shall be reimbursed 
under the DRG methodology. 

(3) The per diem rate for psychiatric ser- 
vices is established at the lesser of the 
actual cost trended to the rate year or 
the calculated median rate of all hospi- 
tals providing psychiatric services as 
derived from the most recent as filed 
cost reports. 

(4) Hospitals that do not routinely provide 
psychiatric services shall have their rate 
set at the median rate. 

(5) The per diem rate for rehabilitation 
services is established at the lesser of 
the actual cost trended to the rate year 
or the calculated median rate of all 
hospitals providing rehabilitation servic- 
es as derived from the most recent filed 
cost reports. 

(6) Rates established under Paragraph (a) 
of this Rule are adjusted for inflation 
consistent with the methodology under 
Rule .0211 Subparagraph (d)(5) of this 
Section. 

(b) To assure compliance with the separate 
upper payment limit for State-operated facilities, 
the hospitals operated by the Department of Hu- 
man Resources and all the primary affiliated 
teaching hospitals for the University of North 
Carolina Medical Schools will be reimbursed their 
reasonable costs in accordance with the provisions 
of the Medicare Provider Reimbursement Manual. 
The Division shall utilize the DRG methodology to 
make interim payments to providers covered under 



this Paragraph, setting the hospital unit value at a 
level which can best be expected to approximate 



reasonable cost. Interim payments made under the 



DRG methodology to these providers shall be 
retrospectively settled to reasonable cost. 
(c) When the Norplant contraceptive is inserted 



during an inpatient stay the current Medicaid fee 
schedule amount for the Norplant kit will be paid 
in addition to DRG reimbursement. The additional 



payment for Norplant will not be paid when a cost 
outlier or day outlier increment is applied to the 
base DRG payment. 

Authority G.S. 108A-25(b); 108A-54; 108A-55; 42 
C.F.R. 447, Subpart C. 

.0213 DISPROPORTIONATE SHARE 
HOSPITALS 

(a) Hospitals that serve a dis proportionate share 
of low-income patients and have a Medicaid 
inpatient utilization rate of not less than one 
percent are eligible to receive rate adjustments. 



The cost report data and financial information that 
is required in order to qualify as a disproportionate 
share hospital effective April 1^ 1991 is based on 
the fiscal year ending in 1989 for each hospital, as 



submitted to the Division of Medical Assistance on 



or before April 1. 1991. The cost report data and 
financial information to qualify as a disproportion 
ate share hospital effective July 1^ 1991 is based 



on the fiscal year ending in 1990 for each hospital. 



as submitted to the Division of Medical Assistance 



on or before September J_, 1991. In subsequent 



years, qualifications effective July 1 of any partic 



ular year are based on each hospital's fiscal year 
ending in the preceding calendar year. The patient 



days, costs, revenues, or charges related to nursing 



facility services, swing-bed services, home health 



services, outpatient services, or any other service 



that is not a hospital inpatient service cannot be 
used to qualify for disproportionate share status. 



A hospital is deemed to be a disproportionate share 
hospital if: 

(1) The hospital has at least two obstetri 



cians with staff privileges at the hospi 



tal who have agreed to provide obstetric 
services to individuals eligible for 
Medicaid. In the case of a hospital 



located in a rural area, the term obste 



trician includes any physician with stafl 



privileges at the hospital to perform 



non-emergency obstetric services as pj 
December 21. 1987 or to a hospital that 
predominantly serves individuals under 
18 years of age; and 



1251 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



PROPOSED RULES 



(2) The hospital's Medicaid inpatient utili- 
zation rate, defined as the percentage 
resulting from dividing Medicaid pa- 
tient days by total patient days, is at 
least one standard deviation above the 
mean Medicaid inpatient utilization rate 
for all hospitals that receive Medicaid 
payments in the state: or 

(3) The hospital's low income utilization 
rate exceeds 25 percent. The low- 
income utilization rate is the sum of: 

(A) The ratio of the sum of Medicaid 
inpatient revenues plus cash subsidies 
received from the State and local 
governments, divided by the 
hospital's total patient revenues; and 

(B) The ratio of the hospital's gross 
inpatient charges for charity care less 
the cash subsidies for inpatient care 
received from the State and local 
governments divided by. the hospital's 
total inpatient charges; or 

(4) The sum of the hospital's Medicaid 
revenues, bad debts allowance net of 
recoveries, and charity care exceeds 20 
percent of gross patient revenues; or 

(5) The hospital, in ranking of hospitals in 
the State, from most to least in number 
of Medicaid patient days provided, is 
among the top group that accounts for 
50% of the total Medicaid patient days 
provided by all hospitals in the State; or 

(6) Psychiatric Hospitals operated by the 
North Carolina Department of Human 
Resources. Division of Mental Health. 
Developmental Disabilities. Substance 
Abuse Services (DMH/DD/SAS) and 
UNC Hospitals operated by. the 
University of North Carolina. 

(b) The rate adjustment for a disproportionate 
share hospital is 2.5 percent plus one fourth of one 



percent for each percentage point that a hospital's 
Medicaid inpatient utilization rate exceeds one 



standard deviation of the mean Medicaid inpatient 
utilization rate in the State. The rate adjustment is 



applied to a hospital's payment rate exclusive of 



any previous disproportionate share adjustments. 

£ci Effective July J^ 1994, hospitals eligible 
under Subparagraph (a)(6) of this Rule will be 



eligible for disproportionate share payments, in 



addition to other payments made under the North 
Carolina Medicaid Hospital reimbursement 



methodology, from a disproportionate share pool 



under the circumstances specified below: 
IH An eligible hospital will 



receive a 



monthly disproportionate share payment 
based on the monthly bed days of 
services to low income persons of each 
hospital divided by the total monthly 
bed days of services to low income 
persons of all hospitals items allocated 
funds. 

(2) This payment shall be in addition to the 
disproportionate share payments made 
in accordance with Subparagraphs (a)(1) 
through (5) of this Rule. However. 
DMH/DD/SAS operated hospitals are 
not required to qualify under the 
requirements of Subparagraphs (a)(1) 
through (5) of this Rule. 

(3) The amount of allocated funds shall be 
determined by the Director of the 
Division of Medical Assistance, but not 
to exceed the quarterly grant award of 
funds (plus appropriate non-federal 
match) earmarked for disproportionate 
share hospital payments less payments 
made under Subparagraphs (a)(1) 
through (5) divided by three. 

In Subparagraph (c)(1) of this Rule, bed days of 
services to low income persons is defined as the 
number of bed days provided to individuals that 
have been determined by the hospital as patients 
that do not possess the financial resources to pay 
portions or all charges associated with care 
provided. 

Low income persons include those persons that 
have been determined eligible for medical 
assistance. The count of bed days used to 



determine payment is based upon the month 
immediately prior to the month that payments are 
made. 

Disproportionate share payments to hospitals are 
limited in accordance with The Social Security Act 
as amended. Title XIX section 1923 (g). limit on 
amount of payment to hospitals. 

Authority G.S. 108A-25(b); 108A-54; 108A-55; 42 
C.F.R. 447, Subpart C. 

.0214 OUT OF STATE HOSPITALS 

(a) Except as noted in Paragraph (c) of this 
Rule, the Division of Medical Assistance shall 
reimburse out-of-state hospitals using the DRG 
methodology. The DRG hospital unit value for all 
out-of-state hospitals shall be equal to the unit 
value of the 45th percentile North Carolina 
hospital. Out-of-state providers are eligible to 
receive cost and day outlier payments, but not 
direct medical education payment adjustments. 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1252 



PROPOSED RULES 



(b) Hospitals that are certified for indirect 
medical education by Medicare may apply for an 
indirect medical education adjustment to its North 
Carolina rate. 

(c) Hospitals certified as disproportionate share 
hospitals by the Medicaid agency in their home 
state may apply for a disproportionate share 
adjustment to their North Carolina Medicaid rate. 
The North Carolina disproportionate share hospital 
rate adjustment shall be the hospital's home state 
DSH adjustment, not to exceed 5%. 

(d) The Division of Medical Assistance may 



enter into contractual relationships with certain 
hospitals providing highly specialized inpatient 
services, in which case reimbursement for inpatient 
services shall be based on contractual terms, not to 
exceed fair and reasonable cost. 



Authority G.S. 108A-25(b); 108A-54; 108A-55; 42 
C.F.R. 447, Subpart C. 

.0215 SPECIAL SITUATION 

(a) In order to be eligible for inpatient hospital 
reimbursement under Section .0200 of this 
Subchapter, a patient must be admitted as an 
inpatient and stay past midnight in an inpatient 
bed. The only exceptions to this requirement are 
those admitted inpatients who die or are 
transferred to another acute care hospital on the 
day of admission. Hospital admissions prior to 72 
hours after a previous inpatient hospital discharge 
are subject to review by the Division of Medical 
Assistance. 

Services for patients admitted and discharged on 
the same day and who are discharged to home or 
to a non-acute care facility must be billed as 
outpatient services. In addition patients who are 
admitted to observations status do not qualify as 
inpatients, even when they stay past midnight- 
Patients in observation status for more than 30 
hours must either be discharged or converted to 
inpatient status. 

(b) Outpatient sen/ices provided to patients 
within the 24 hour period prior to an inpatient 
admission in the same hospital shall be bundled 
with the inpatient billing. 

(c) When a patient is transferred between 
hospitals, the discharging hospital shall receive a 
pro-rated payment equal to the normal DRG 
payment multiplied by the patient's actual length of 
stay divided by the geometric mean length of stay 
for the DRG. When the patient's actual length of 
stay equals or exceeds the geometric mean length 
of stay for the DRG, the transferring hospital 
receives full DRG payment. Transfers are eligible 



for cost outlier payments. The final discharging 
hospital shall receive the full DRG payment. 

(d) Days for authorized skilled nursing for 
intermediate care level for service rendered in an 
acute care hospital shall be reimbursed at a rate 
equal to the average rate for all such Medicaid 
days based on the rates in effect for the long term 
care plan year beginning each October L 

Days for lower than acute level of care for 
ventilator dependent patients in swing-bed hospitals 
or that have been down-graded through the 
utilization review process may be paid for up to 
180 days at a lower level ventilator-dependent rate 
if the hospital is unable to place the patient in a 
lower level facility. An extension maybe granted 
if in the opinion of the Division of Medical 
Assistance the condition of the patient prevents 
acceptance of the patient. A single all inclusive 
prospective per diem rate is paid, equal to the 
average rate paid to nursing facilities for 
ventilator-dependent services. The hospital must 
actively seek placement of the patient in an 
appropriate facility. 

(e) The Division of Medical Assistance may 
make a retrospective review of any transfers to a 
lower level of care prior to the expiration of the 
average length of stay for the applicable DRG. 
The Division of Medical Assistance may adjust the 
DRG payment if the transfer is deemed to be 
inappropriate, based on the preponderance of 
evidence of a case by case review. 

(f) In state-operated hospitals, the a ppropriate 
lower level of care rates equal to the average rate 
paid to state operated nursing facilities, are paid 
for skilled care and intermediate care patients 
awaiting placement in a nursing facility bed. 

(g) For an inpatient hospital stay where the 
patient is Medicaid eligible for only part of the 
stay, then the Medicaid program shall pay the 
DRG payment less the patient's liability. 

Authority G.S. 108A-25(b); 108A-54; 108A-55; 42 
C.F.R. 447 Subpart C. 

.0216 COST REPORTING AND AUDITS 

Annual cost report shall be filed with the 
Medicare Intermediary. Blue Cross and Blue 
Shield of North Carolina in accordance with all 
standards, principles, and time schedules required 
by the Common Medicare/Medicaid Audits. 

Authority G.S. 108A-25(b); 108A-54; 108A-55; 42 
C.F.R. 447, Subpart C. 

.0217 ADMINISTRATIVE 



1253 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



PROPOSED RULES 



RECONSIDERATION REVIEWS 

Reconsideration reviews of rate determinations 
shall be processed in accordance with the 
provisions of H) NCAC 26K. Requests for 
reconsideration reviews shall be submitted to the 
Division of Medical Assistance within 60 days 
after rate notification, unless unexpected conditions 
causing intense financial hardship arise, in which 
case a reconsideration review may be considered 
at any time. 

Authority G.S. 108A-25(b); 108A-54; 108A-55; 42 
C.F.R. 447, Subpart C. 

.0218 BOXING STANDARDS 

(a) Providers shall use codes from the 
International Classification of Diseased. 9th 
Revision. Clinical Modification (ICD-9-CM) to 
report diagnoses and procedures. Providers shall 
use the codes which are in effect at the time of 
discharge. The reporting of ICD-9-CM diagnosis 
and procedure codes shall follow national coding 
guidelines promulgated by the Health Care 
Financing Administration. 

(b) Providers shall generally bill only after 
discharge. However, interim billings may be 
submitted on or after 60 days after an admission 
and on or after every 60 days thereafter. 

(c) The discharge claim is required for Medicaid 
payment. The purpose of this Rule is to assure a 
discharge status claim is filed for each Medicaid 
stay. 

(1) An interim billing must be followed by 
a successive interim billing or discharge 
(final) billing within 180 days of the 
date of services on the most recent 
claim. When an interim claim is not 
followed by an additional interim or 
discharge (final) claim within 180 days 
of the "to date of services" on the most 
recent paid claim, all payments made 
for all claims for the stay will be 
recouped. 

(2) After a recoupment is made according 
to this Rule, a subsequent "admit 
through discharge" or interim claim for 
payment will be considered for normal 
processing and payment unless the 
timely filing requirements of 10 NCAC 
26D .0012 are exceeded. 

Authority G.S. 108A-25(b); 108A-54; 108A-55; 42 
C.F.R. 447, Subpart C. 

.0219 PAYMENT OF MEDICARE 



PART A DEDUCTD3LES 

For payment of Medicare Part A deductibles, the 
Division of Medical Assistance shall pay the 
Medicaid DRG payment less the amount paid by 
Medicare. 

Authority G.S. 108A-25(b); 108A-54; 108A-55; 42 
C.F.R. 447, Subpart C. 

.0220 PAYMENT ASSURANCES 

The state shall pay each hospital the amount 
determined for inpatient services provided by the 
hospital according to the standards and methods set 
forth in this Rule. In all circumstances involving 
third party payment. Medicaid shall be the payor 
of last resort. 

Authority G.S. 108A-25(b); 108A-54; 108A-55; 42 
C.F.R. 447, Subpart C. 

.0221 PROVIDER PARTICIPATION 

Payments made according to the standards and 
methods described in this plan are designed to 
enlist the participation of a majority of hospitals in 
the program so that eligible persons can receive 
medical care services included in the State Plan at 
least to the extent these services are available to 
the general public. 

Authority G.S. 108A-25(b); 108A-54; 108A-55; 42 
C.F.R. 447, Subpart C. 

.0222 PAYMENT IN FULL 

Participation in the program shall be limited to 
hospitals who accept the amount paid in accor- 
dance with this plan as payment in full for services 
rendered to Medicaid recipients. 

These changes to the payment for general hospi- 
tal inpatient services reimbursement plan will 
become effective when: 

The Health Care Financing Ad- 
ministration. U.S. Department of 
Health and Human Services. 
a pproves amendment submitted to 
HCFA by the Director of the 
Division of Medical Assistance on 
or about January J^ 1995 as #MA 
94-33. wherein the Director 
proposes amendments of the State 
Plan to amend payment for gener- 
al hospital inpatient services. 

Authority G.S. 108A-25(b); 108A-54; 108A-55; 42 
C.F.R. 447, Subpart C. 



9:16 



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November 15, 1994 



1254 



PROPOSED RULES 



TITLE 11 - DEPARTMENT OF 
INSURANCE 

l\otice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Department of Insurance 
intends to amend rules cited as 11 NCAC 12 . 1502 
- . 1504. 

1 he proposed effective date of this action is 
February 1, 1995. 

1 he public hearing will be conducted at 10:00 
a.m. on December 1 , 1994 at the Dobbs Building, 
430 N. Salisbury Street, 3rd Floor Hearing Room, 
Raleigh, N.C. 27611. 

Jxeason for Proposed Action: To make technical 
corrections. 

K^omment Procedures: Written comments may be 
sent to Rodney Finger at 430 N. Salisbury Street, 
Raleigh, N.C. 27611. Oral presentations may be 
made at the public hearing. Anyone ha\ing ques- 
tions should call Rodney Finger at (919) 733-5060. 

CHAPTER 12 - LIFE AND 
HEALTH DIVISION 

SECTION .1500 - UNDJORM 
CLAIM FORMS 

.1502 REQUIREMENTS FOR USE 
OF HCFA FORM 1450 (UB92) 

(a) Effective January 1, 1995, the HCFA Form 
1450 (UB92) shall be the standard claim form for 
all manual billing by institutional health care 
providers, and the HCFA Form 1450 shall be 
accepted by all payors conducting business in this 
State. 

(b) Effective January 1, 1995, with implementa- 
tion to be complete no later than April _]_, 1995, 
the following additional information and placement 
location shall be required for the HCFA Form 
1450 (UB92): 

{\) Th e payor's F e d e ral Employer Idontifi 

oation Numb e r (FEIN) shall b e looat e d 
as th e last data e lem e nt in form looator 
50 (lin e s A, B, C). This e l e m e nt shall 
be preceded by a "/" if additional infer 
motion is record e d in this form looator. 
Only oodos identified for us e in that 



in 



12) 



field as available from the Department 

shall be used. 

{2-)The provider tax I.D. number shall 

be located in form locator 5. 

{3)The ethnic origin code shall be 

located in form locator 24-30 (Condi 

tion Codes), using Code ZO Z9 XI -X5 



(see definitions as defined in the State 
Uniform Billing Manual) to translate 
the ethnic origin codes. 

(c) Effective October 1, 1995, the cause of 
injury code shall be located in form locator 77. 
This code shall be required on all HCFA Form 
1450 (UB92) claims generated by institutional 
health care providers for claims of inpatients and 
of patients treated in emergency rooms or trauma 
centers; and where the diagnosis includes an injury 
diagnosis, which means a diagnostic code in the 
range or 800-999 as defined in the ICD-9 coding 
manual. Coding of the cause of injury shall be in 
accordance with national standards created in the 
Guidelines of Cooperating Parties, a national 
coding standards setting group. The absence of 
this code may not be used to deny the payment of 
a claim. 

(d) Payors may require institutional health care 
providers to use only the following coding systems 
for the filing of claims for health care services: 

(1) ICD-9-CM Codes to report all diagno- 
ses, reasons for encounters and proce- 
dures - based upon code level changes 
made effective October 1 of each year 
or other effective date designated by the 
HCFA. 

(2) HCPCS Level 1 and 2 Codes - based 
upon code level changes made effective 
October 1 of each year or other effec- 
tive date designated by the HCFA. 

(3) CPT-4 Codes based upon code level 
changes made effective January 1 of 
each year or other effective date desig- 
nated by the HCFA. 

(e) When there is no applicable HCPCS Level 1 
or Level 2 Code or modifier, the payor may 
establish its own code or modifier. A complete 
list of all codes and modifiers established by 
payors must be published by and available upon 
request from payors by January 1, 1995. 

Statutory Authority G.S. 58-2-40; 58-3-171. 

.1503 REQUIREMENTS FOR USE 
OF HCFA FORM 1500 

(a) Effective January 1, 1995, the HCFA Form 
1500 shall be the standard claim form for all 



1255 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



PROPOSED RULES 



manual individual health care provider billing, and 
the HCFA Form 1500 shall be accepted by all 
payors conducting business in this State. 

(b) Effective January 1, 1995. with implementa- 
tion to be complete no later than April ]_,. 1995, 
the following additional information and placement 
location shall be required for the HCFA Form 
1500: 

{ij The payor's Federal Employer Identifi 

cation Number (FEIN) s hall be located 
as the last data clement in form locator 
1 le. This clement shall be preceded by 
a "/" if additional information is record 
cd in this form locator. — Only code s 
identified for u s e in field lie a s avail 
able from the Department shall be u s ed. 

(1) {3)The provider tax I.D. number shall 
be located in form locator 25. 

(2) {3}The ethnic origin code shall be 
located in form locator la as the subse- 
quent set of numbers in that form loca- 
tor; the first set of numbers being the 
insured's I.D. number. Codes Z0 Z9 
XI -X5 (see definitions as defined in the 
State Uniform Billing Manual), to 
translate the ethnic origin codes, shall 
be used to designate the ethnic origin 
and preceded by the symbol "/". 

(c) Payors may require individual health care 
providers to use only the following coding system 
for the filing of claims for health care services: 

(1) ICD-9-CM Codes to report all diagno- 
ses, reasons for encounters and proce- 
dures - based upon code level changes 
made effective October 1 of each year 
or other effective date designated by the 
HCFA. 

(2) HCPCS Level 1 and 2 Codes - based 
upon code level changes made effective 
October 1 of each year or other effec- 
tive date designated by the HCFA. 

(3) CPT-4 Codes based upon code level 
changes made effective January 1 of 
each year or other effective date desig- 
nated by the HCFA. 

(d) When there is no applicable HCPCS Level 
1 or Level 2 Code or modifier, the payor may 
establish its own code or modifier. A complete 
list of all codes and modifiers established by 
payors must be published by and available upon 
request from payors by January 1, 1995. 

(e) Type of service codes may not be used after 
December 31, 1995. 

(f) Place of service codes and descriptions shall 
be recognized by all payors processing claims for 



services rendered in North Carolina on and after 
January 1, 1996. 

(g) Both HCFA physician and specialty codes 
and North Carolina Board of Medical Examiners 
specialty definitions shall be recognized by payors 
processing claims for services rendered in North 
Carolina on and after January 1, 1996. 

(h) A Uniform Billing Manual, similar to the 
concept used by the SUBC for HCFA Form 1450 
(UB92), shall be developed to set forth HCFA 
Form 1500 standards by August 1, 1995. The 
SUBC, along with the North Carolina Medical 
Society, may develop and recommend a Uniform 
Billing Manual to the Commissioner by August 1 , 
1995. This manual may include standards estab- 
lished by the National Uniform Billing Committee 
as reflected in its ANSI 837 Guide to be released 
in February of 1995. 

Statutory Authority G.S. 58-2-40; 58-3-171. 

.1504 REQUIREMENTS FOR USE OF 
THE CURRENT ADA DENTAL 
CLAIM FORM 

(a) Effective January 1, 1995, with implementa- 
tion to be complete no later than April J^ 1995. 
Dentists shall use the current ADA Dental Claim 
Form and instructions for all manual claims filing 
with payors. 

{¥) The payor's Federal Employer Identifi 

cation Number (FEIN) s hall be located 
as the last data clement in form locator 
W-. — This element will be preceded by 
a "/" if additional information is record 
cd in this form locator. — Only codes 
identified for use in that field as avail 
able from the Department s hall be used. 

(1) {3)The provider tax I.D. number shall 
be located in form locator 18. 

(2) {3)The ethnic origin code shall be 
located in form locator 31 using Code 
Z0 Z9 XI -X5 (see definitions as de- 
fined in the State Uniform Billing Man- 
ual), to translate the ethnic origin 
codes, and shall be the first entry on 
the first line of that form locator, and it 
shall be followed by the symbol "/". 

(b) A Uniform Billing Manual, similar to the 
concept used by the SUBC for the HCFA Form 
1450 (UB92), shall be developed to set standards 
for the current ADA Dental Claim Form by 
August 1, 1995. The North Carolina Dental 
Society may develop and recommend a Uniform 
Billing Manual to the Commissioner on or before 
August 1, 1995. 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1256 



PROPOSED RULES 



Statutory Authority G.S. 58-2-40; 58-3-171. 
****************** 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Department of Insurance 
intends to adopt rules cited as 11 NCAC 16 .0701 
- .0705. 

A he proposed effective date of this action is 
February 1, 1995. 

1 he public hearing will be conducted at 10:00 
a.m. on December 1 , 1994 at the Dobbs Building, 
430 N. Salisbury Street, 3rd Floor Hearing Room, 
Raleigh, N.C. 27611. 

Jxeason for Proposed Action: Assure that HMO 's 
are properly reserving. 

{comment Procedures: Written comments may be 
sent to Walter James at 430 N. Salisbury Street, 
Raleigh, N.C. 27611. Oral presentations may be 
made at the public hearing. Anyone having ques- 
tions should call Walter James at (919) 733-3284. 

CHAPTER 16 - ACTUARIAL 
SERVICES DIVISION 

SECTION .0700 - HEALTH 

MAINTENANCE ORGANIZATION CLAIM 

RESERVE DATA REQLTREMENTS 

.0701 DEFINITIONS 

As used in this Section: 

(1) "Claim reserves" means reserves or 
liabilities held for claims incurred on or 
before the valuation date, but unpaid as 
of the valuation date. Claim reserves 
include both reported and unreported 
claims. Claim reserves are established 
for both accrued and unaccrued benefits. 

(2) "Valuation date" means the date, i.e. 
March 31. June 30, September 30. or 
December 31, at which reserves are 
estimated. 

Statutory Authority G.S. 57-2-40; 58-67- 135(b). 

.0702 CLAIMS 

(a) When an HMO has been informed that a 
claim has been incurred, if the date reported is on 



or before the valuation date, the claim is consid- 
ered as a reported claim. 

(b) When an HMO has not been informed, on or 
before the valuation date, concerning a claim that 
has been incurred on or before the valuation date, 
the claim is considered as an unreported claim. 

(c) The date on which a claim is determined to 
be a liability of an HMO is the incurred date. For 
example: The charges for inpatient hospital and 
physician visits in hospitals would be assigned an 
incurred date equal to the date of admission: 
outpatient hospital charges would be assigned an 
incurred date equal to the date of service; and 
surgical expenses would be assigned an incurred 
date equal to the date of the surgery. 

Statutory Authority G.S. 57-2-40; 58-67-1 35(b). 

.0703 CLAIM RESERVE FDLING 
REQLTREMENTS 

(a) Quarterly claim reserve data filings shall be 
made by all HMOs: 

(1) Commencing at the beginning of their 
second full calendar year of operations 
and ending at the beginning of their 
fourth full calendar year of operations. 
Quarterly filings shall be sent to the 
Actuarial Services Division within 45 
days after the end of each quarterly 
valuation: and 

(2) If either of the following conditions is 
satisfied: 

(A) If for the most recent quarterly valua- 
tion the net worth less the contingen- 
cy reserve is less than the statutory 
minimum as stated in G.S. 58-67- 
110(c) or G.S. 58-67-1 10(d): or 

(B) If for the most recent annual valuation 
(current year) the following is satis- 
fied: (i) is equal to or greater than 
one hundred and 10 percent (110%) 
of (ii), where, 

£i] Total claims paid during the year 
and incurred in the prior year and 
claims unpaid at December 31, of 
the current year on claims in- 
curred in prior years. 
(ii) Estimated liability of unpaid 
claims at December 31, of the 
previous year. 
£b] Provided that Subparagraph (a)(2) of this 
Rule is not satisfied, annual filings shall be made 
by all HMOs commencing at the beginning of their 
fourth full calendar year of operations. Annual 
filings shall be sent to the Actuarial Services 



1257 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



PROPOSED RULES 



Division within 90 days after the end of each 
annual valuation. 

Statutory Authority G.S. 57-2-40; 58-67-1 35(b). 

.0704 CLAIM RESERVE DATA AND 
FORMAT REQUIREMENTS 

(a) The data requirements in Paragraph (b) of 
this Rule shall be recorded for the following types 
of claims: 

(1) Inpatient Claims; 

(2) Physician Claims; 

(3) Referral Claims; and 
(41 Other. 

(b) For the most recent 36-month period imme- 
diately preceding and including the valuation date, 
the following "monthly" historical data shall be 
recorded by the month in which the claim or 
payment was incurred and by the following: 

(1) Cumulative number of claims reported 
through the 36-month period; 

(2) Cumulative number of claims paid 
through the 36-month period; 

(3) Cumulative dollar amount of claims 
paid through the 36-month period; and 

(4) Cumulative dollar amount of claims 
incurred through the 36-month period. 

(c) The following monthly historical data shall 
be recorded for the most recent 36-month period 
immediately preceding and including the valuation 
date: 

(1) Earned premiums by calendar month; 

(2) Total number of enrollees at the begin- 
ning and end of each month; 

(3) Data on claim amounts greater than or 
equal to twenty-five thousand dollars 
($25,000); and 

(4) Data on refunds. 



(d) Schedule H, Section II - Analysis of Unpaid 
Claims, updated as of the current valuation date. 

(el All data in this Rule shall be recorded on a 
3.5" diskette containing a LOTUS worksheet 
named CLM RES.WK3 or CLMRES.WK1; 
which can be obtained from the Actuarial Services 
Division. 

(f) A hard copy of the LOTUS worksheet shall 
accompany the filing. 

Statutory Authority G.S. 57-2-40; 58-67-1 35(b). 

.0705 CLAIM RESERVE METHODOLOGY 
AND ACTUARIAL CERTIFICATION 

(a) A written description of the claim reserve 
methodology and a numerical verification of the 
claim reserves submitted in 11 NCAC 16 .0704(d) 
shall be included with each filing. 

(b) Each annual filing shall contain an actuarial 
certification signed by a qualified actuary stating 
that the actuary has examined the claim reserves 
listed in Schedule - FL. Section II, and affirms that 
these claim reserves are calculated in accordance 
with generally accepted actuarial principles and 
practices and in the actuary's opinion are adequate. 

(c) As used in this Rule, "qualified actuary" 
means an individual who is an Associate or Fellow 
of the Society of Actuaries or a Member of the 
American Academy of Actuaries and who has at 
least five years of substantive experience in claim 
reserving for HMOs. 

Statutory Authority G.S. 57-2-40; 58-67-1 35(b). 



TITLE 13 - DEPARTMENT OF LABOR 

ISotice is hereby given in accordance with G.S. 150B-21.2 that the North Carolina Department of 
Labor/Division of Occupational Safety & Health intends to amend rule cited as 13 NCAC 07F .0201. 

lhe proposed effective date of this action is February 1, 1995. 

1 he public hearing will be conducted at 10:00 a.m. on December 7, 1994 at the Division of Occupational 
Safety & Health, 319 Chapanoke Road, Suite 105, Raleigh, NC 27603. 

Mxeason for Proposed Action: To incorporate the Bloodbome Pathogens standard into the Occupational 
Safety and Health Standards for Construction. 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1258 



PROPOSED RULES 



(comment Procedures: Persons wanting to present oral testimony at the public hearing should provide a 
written statement of the proposed testimony to the Division three (3) business days prior to the hearing. 
Written comments will be accepted until December 15, 1994. Direct all correspondence to Jill F. Cramer, 
NCDOL/OSHA, 319 Chapanoke Road, Suite 105, Raleigh, NC 27603-3432. 

1 his Rule affects the expenditures or revenues of local funds. A fiscal note was submitted to the Fiscal 
Research Division on October 21, 1994, OSBM on October 21, 1994, N.C League of Municipalities on 
October 21, 1994, and N.C. Association of County Commissioners on October 21, 1994. 

CHAPTER 7 - OSHA 

SUBCHAPTER 7F - STANDARDS 

SECTION .0200 - CONSTRUCTION STANDARDS 

.0201 CONSTRUCTION 

(a) The provisions for the Occupational Safety and Health Standards for Construction, Title 29 of the Code 
of Federal Regulations Part 1926, are incorporated by reference except as follows: 

(1) Subpart C — General Safety and Health Provisions — Personal protective equipment, §1926. 28(a) 
is amended to read as follows: "(a) The employer is responsible for requiring the wearing of 
appropriate personal protective equipment in all operations where there is an exposure to hazardous 
conditions or where this part indicates the need for using such equipment to reduce the hazards to 
the employees." 

(2) Subpart D — Occupational Health and Environmental Controls — incorporation by reference of 
modified final rule for 29 CFR 1926.59, Hazard Communication, including Appendices A through 
E, published in 59 FR (February 9, 1994) pages 6170 - 6184 except that 1926.59(b)(6)(ii) is 
amended to read: 

"(ii) Any hazardous substance as such term is defined by the Comprehensive Environmental 
Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. 9601 et seq), when regulated 
as a hazardous waste under that Act by the Environmental Protection Agency;" 

(3) Subpart Z ~ Toxic and Hazardous Substances — incorporation of the existing standard for 
Bloodborne Pathogens, 29 CFR 1910.1030, excluding subparagraph je) HIV and HBV Research 
Laboratories and Production Facilities, into the Safety & Health Regulations for Construction at 
29 CFR 1926.1030. Final rule as published in 56 FR (December 6, 1991) pages 64175 - 64182, 
including Appendix A — Hepatitis B Vaccine Declination (Mandatory) ~ with corrections as 
published in 57 FR (July J^ 1992) page 29206, and with the following revision to the definition of 
Occupational Exposure under subsection (b) Definitions: 

"Occupational Exposure means reasonably anticipated skin, eye, mucous membrane, or parenteral 
contact with blood or other potentially infectious materials that may result from the performance 
of collateral first aid duties by an employee in the areas of construction, alteration, and/ or repair, 
including painting and decorating." 

(b) The parts of the Code of Federal Regulations incorporated by reference in this Subchapter shall not 
automatically include any subsequent amendments thereto, except as follows: 

(1) Incorporation of existing General Industry Standards (Part 1910) applicable to construction work 
into the Safety & Health Regulations for Construction (Part 1926). Final rule as published in 58 
FR (June 30, 1993) pages 35076-35311 and adopted by th e North Carolina D e partment of Labor 
on Novemb e r 1, 1993 effective on December j^ 1993 ; correction to Appendix D to §1926.1147 
as published in 58 FR (July 28, 1993) page 40468 and adopt e d by th e North Carolina Departm e nt 
of Labor effective on December 31, 1993. 

Subpart C — General Safety and Health Provisions, 

1926.33 Access to employee exposure and medical records. 

1926.34 Means of egress. 

1926.35 Employee emergency action plans. 
Subpart D — Occupational Health and Environmental Control, 



1259 NORTH CAROLINA REGISTER November 15, 1994 9:16 



PROPOSED RULES 



1926.64 Process safety management of highly hazardous chemicals. 

1926.65 Hazardous waste operations and emergency response. 

1926.66 Criteria for design and construction for spray booths. 
Subpart E — Personal Protective Equipment and Life Saving Equipment, 

1926.95 Criteria for personal protective equipment. 

1926.96 Occupational foot protection. 

1926.97 Protective clothing for fire brigades. 

1926.98 Respiratory protection for fire brigades. 
Subpart F — Fire Protection and Prevention, 

Fixed Fire Suppression Equipment 

1926.156 Fire extinguishing systems, general. 

1926.157 Fire extinguishing systems, gaseous agent. 
Other Fire Protection Systems 

1926.158 Fire detection systems. 

1926.159 Employee alarm systems. 
Subpart I — Tools - Hand and Power, 

1926.306 Air receivers. 

1926.307 Mechanical power-transmission apparatus. 
Subpart L — Scaffolding, 

1926.453 Manually propelled mobile ladder stands and scaffolds (towers). 
Subpart Y ~ Commercial Diving Operations, 
General 

1926.1071 Scope and application. 

1926.1072 Definitions. 
Personnel Requirements 

1926.1076 Qualifications of dive team. 
General Operations Procedures 

1926.1080 Safe practices manual. 

1926.1081 Pre-dive procedures. 

1926.1082 Procedures during dive. 

1926.1083 Post-dive procedures 
Specific Operations Procedures 

1926.1084 SCUBA diving 

1926.1085 Surface-supplied air diving 

1926.1086 Mixed-gas diving. 

1926.1087 Liveboating. 

Equipment Procedures and Requirements 

1926.1090 Equipment. 
Recordkeeping 

1926.1091 Recordkeeping requirements. 

1926.1092 Effective date. 

Appendix A to Subpart Y - Examples of Conditions Which May Restrict or Limit Exposure 
to Hyperbaric Conditions. 

Appendix B to Subpart Y - Guidelines for Scientific Diving. 
Subpart Z — Toxic and Hazardous Substances 
1926.1100-1926.1101 [Reserved]. 

1926.1102 Coal tar pitch volatiles; interpretation of term. 

1926.1103 4-Nitrobiphenyl. 

1 926 . 1 1 04 alpha-Naphthylamine. 

1926.1105 [Reserved]. 

1926.1106 Methyl chloromethyl ether. 

1926.1107 3,3'-Dichlorobenzidine [and its salts]. 

1926.1108 bis-Chloromethyl ether. 

1 926 . 1 1 09 beta-Naphthy lamine. 

1926.1110 Benzidine. 



9:16 NORTH CAROLINA REGISTER November 15, 1994 1260 



PROPOSED RULES 



1926.1111 4-Aminodiphenyl. 

1926.1112 Ethyleneimine. 

1926.1113 beta-Propiolactone. 

1926.1114 2-Acetylaminofluorene. 

1 926 .1115 4-Dimethylaminoazobenzene. 

1926.1116 N-Nitrosodimethylamine. 

1926.1117 Vinyl chloride. 

1 926 .1118 Inorganic arsenic. 

1926.1128 Benzene. 

1926. 1 129 Coke emissions. 

1926.1 144 1 ,2-dibromo-3-chloropropane. 

1926.1145 Acrylonitrile. 

1926.1147 Ethylene oxide. 

1926.1148 Formaldehyde. 
Appendix A to Part 1926. Designations for General Industry Standards Incorporated Into Body 
of Construction Standards; 

(2) Subpart D — Occupational Health and Environmental Controls: 

(A) Revision of Authority Citation for Subpart D of Part 1926 published in 59 FR (July 19, 1994) 
pages 36699 - 36700 and effective on November 1, 1994. 

(B) Addition of 1926.61 "Retention of DOT markings, placards, and labels," published in 59 FR 
(July 19, 1994) pages 36699 - 36700 and effective on November 1, 1994. 

(C) 29 CFR 1926.62, Lead in Construction. Interim final rule and appendices A through D as 
published in 58 FR (May 4, 1993) pages 26627-26649 and adopted by the North Carolina 



Department of Labor on September 6, 1993 effective on October 4, 1993 
(D) Typographical and technical corrections at 1926.63, Cadmium, published in 58 FR (April 23, 
1993) pages 21778 - 21780 and 21787 and adopted by the North Carolina Department of Labor 



effective on September 24, 1993; corrections are to final rule for Occupational Exposure to 

Cadmium as originally published in 57 FR 42101 (September 14, 1992) 

(E) Technical amendments to the existing Appendix B and addition of non-mandatory Appendix E 

to 1926.65, Hazardous Whste Operations and Emergency Response as published in 59 FR (August 

22, 1994) pages 43270 - 43280 and effective on November 1, 1994 

(3) Subpart Z — Toxic and Hazardous Substances — correction to 29 CFR 1926 by adding text and 

redesignation for Cadmium as published in 59 FR (January 3, 1994) page 215 and adopted by the 

North Carolina Department of Labor effective on April 15, 1994. 

(c) Copies of the applicable Code of Federal Regulations sections referred to in this Subchapter are available 

for public inspection at the North Carolina Department of Labor, Division of Occupational Safety and Health 

A single copy may be obtained from the Division at a cost of ten dollars and sixty cents ($10.60) (inclusive 

of tax); each additional copy will be the same price 



he public hearings will be conducted on: 



Statutory Authority G.S. 95-131; 150B-21.6. 

TITLE 15A - DEPARTMENT OF 

ENVIRONMENT, HEALTH, AND 

NATURAL RESOURCES 

December 5, 1994 

j. T 7:00 p. m. 

Notice is hereby given in accordance with G.S. Charlotte/Mecklenburg Government Center 

150B-21.2 that the Environmental Management Room 118 

Commission intends to adopt rules cited as 15A 600 East 4th Street 

NCAC 2D .0105, .1401 - .1415, .1501 - .1504, Charlotte, North Carolina 

1601 - 1603; 15 A NCAC 2Q .0801 - .0807; amend 

15A NCAC 2D . 1201 - . 1206 and . 1209. December 15, 1994 

7:00 p.m. 

1 he proposed effective date of this action is April _ , _ „ . „ 

Ground Floor Hearing Room 
1, 1995. 5 



1261 NORTH CAROLINA REGISTER November 15, 1994 9:16 



PROPOSED RULES 



512 N. Salisbury Street 
Raleigh, North Carolina 

Jxeasonfor Proposed Action: 
15A NCAC 2D .0105 - Mailing List, to establish 
a mailing list as required under the General 
Statutes and to charge a fee to cover the costs of 
copying and mailing; 

15A NCAC 2D. 1201, .1202, .1203, .1204, .1205, 
.1206, and .1209 - to adopt federal regulations for 
sewage sludge incinerators contained in 40 CFR 
Part 503, Subpart E; 

15A NCAC 2D .1501, .1502, .1503, and .1504 - 
to adopt federally mandated requirements for 
Transportation Conformity; 
15A NCAC 2D .1601, .1602, and .1603 - to adopt 
federally mandated requirements for General 
Conformity. 

ISA NCAC 2D .1401 through .1415 - to adopt 
reasonably available control technology (RACT) 
for nitrogen oxides (NOx) for ozone nonattainment 
areas; and 

15A NCAC 2Q .0801 through .0807 - to define 
potential emissions for various types of sources. 

Lsomment Procedures: All persons interested in 
these matters are invited to attend the public 
hearings. Any person desiring to comment for 
more than three minutes is requested to submit a 
written statement for inclusion in the record of 
proceedings at the public hearing. The hearing 
record will remain open until January 16, 1995, to 
receive additional written statements. 
Comments should be sent to and additional infor- 
mation concerning the hearing or the proposals 
may be obtained by contacting: 

Mr. Thomas C. Allen 

Division of Environmental Management 

P. O Box 29535 

Raleigh, North Carolina 27626-0535 

(919) 733-1489 (phone) 

(919) 733-1812 (fax) 

Fiscal Note: Rule 15A NCAC 2D .0105 affects 
the expenditures or revenues of local funds. A 
fiscal note was submitted to the Fiscal Research 
Division on May 25, 1994, OSBM on July 25, 
1994, N.C. League of Municipalities on May 25, 
1994, and N. C Association of County Commis- 
sioners on May 25, 1994. 

CHAPTER 2 - ENVIRONMENTAL 
MANAGEMENT 



SUBCHAPTER 2D - Am POLLUTION 
CONTROL REQUIREMENTS 

SECTION .0100 - DEFINITION 
AND REFERENCES 

.0105 MAILING LIST 

{a} The Air Quality Section shall develop and 
maintain a mailing list of persons who have re- 
quested notification of rule-making as required by 
150B-2 1.2(b). Such persons shall receive a copy 
of the complete notice as filed with the Office of 
Administrative Hearings. 

(b) Any person requesting to be on a mailing list 
established under Paragraph (a) of this Rule shall 
submit a written request to the Air Quality Section. 
P.O. Box 29535, Raleigh, North Carolina, 27626. 
Payment of fees required under this Section may 
be by check or money order in the amount of 
thirty dollars ($30.00) made payable to the Depart- 
ment of Environment, Health, and Natural Re- 
sources. Payment shall be submitted with each 
request and received by June 1 of each year. The 
fee covers from July 1 to June 30 of the following 
year. 

Statutory Authority GS. 143-215. 3(a)(1); 
150B-21.2(b). 

SECTION .1200 - CONTROL OF 

EMISSIONS FROM 

INCINERATORS 

.1201 PURPOSE AND SCOPE 

(a) This Section sets forth rules for the control 
of the emissions of air pollutants from incinerators. 

(b) The rules in this Section apply to all types of 
incinerators as defined by 15 A NCAC 2D 
.0101(19), including incinerators with heat 
recovery and industrial incinerators. The rules in 
this Section do not apply to afterburners, flares, 
fume incinerators, and other similar devices used 
to reduce the emissions of air pollutants from 
processes, whose emissions shall be regulated as 
process emissions. 

(c) This Section does not apply to any boilers or 
industrial furnaces that burn waste as a fuel. 

(d) This Section does not apply to incinerators 
used to dispose of dead animals or poultry that 
meet the following requirements: 

(1) The incinerator is located on a farm and 
is owned and operated by the farm 
owner or by the farm operator; 

(2) The incinerator is used solely to dispose 
of animals or poultry originating on the 



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1262 



PROPOSED RULES 



farm where the incinerator is located; 

(3) The incinerator is not charged at a rate 
that exceeds its design capacity; and 

(4) The incinerator complies with Rule 
.0521 (visible emissions) and .0522 
(odorous emissions) of this Subchapter. 

(e) If the incinerator is used solely to cremate 
pets or if the emissions of all toxic air pollutants 
from an incinerator and associated waste handling 
and storage are less than the levels listed in 15A 
NCAC 2H .0610(h), the incinerator shall be 
exempt from Rules .1205(f) through £1) {i), and 
.1206 of this Section. Sewage sludge incinerators 
and sludge incinerators are not eligible for 
exemption under this Paragraph . 

(f) If an incinerator can be defined as being 
more than one type of incinerator, then the 
following order shall be used to determine the 
standards and requirements to apply: hazardous 
waste incinerators, sewage sludge incinerators, 
sludge incinerators, medical waste incinerators, 
municipal solid waste incinerators, crematory 
incinerators, and other incinerators. 



Statutory Authority G. S. 
215. 107(a)(1), (3), (4), (5). 



143-21 5. 3(a)(1); 143- 



.1202 DEFINITIONS 

(a) For the purposes of this Section, the follow- 
ing definitions apply: 

(1) "Control efficiency" means the mass of a 
pollutant in the waste fed to an incinera- 
tor minus the mass of that pollutant in the 
exit gas from the incinerator stack divid- 
ed by the mass of the pollutant in the 
waste fed to the incinerator. 

(2) fl-)" Crematory incinerator" means any 
incinerator located at a crematory regu- 
lated under 21 NCAC 34C that is used 
solely for the cremation of human re- 
mains. 

(3) {3) "Construction and demolition waste" 
means wood, paper, and other combusti- 
ble waste resulting from construction and 
demolition projects except for hazardous 
waste and asphaltic material. 

(4) {^"Hazardous waste incinerator" means 
an incinerator regulated under 15A 
NCAC 13A .0001 through .0014, 40 
CFR 264.340 to 264.351, Subpart O, or 
265.340 to 265.352, Subpart O. 

(5) {4) "Medical waste incinerator" means any 
incinerator regulated under Section 15A 
NCAC 13B .1207(3). 

(6) ^"Municipal solid waste incinerator" 



means an incinerator as defined at 40 
CFR 60.51a that burns municipal-type 
solid waste of which at least 95 percent 
by weight is generated off-site and that 
has a capacity of at least one ton per 
hour, except that boilers shall not be 
considered part of this definition. 

(7) {6}" Municipal-type solid waste" means 
solid waste defined at 40 CFR 60.51a. 

(8) "POTW" means a publicly owned treat- 
ment works as defined in 40 CFR 501.2. 

(9) "Sewage sludge incinerator" means any 
incinerator regulated under 40 CFR Part 
503, Subpart E. 

(10) £7-)" Sludge incinerator" means any incin- 
erator regulated under Paragraph (a)(4) of 
Rule .0525 of this Subchapter but not 
under 40 CFR Part 503, Subpart E. 

(1 1) "Total hydrocarbons" means the organic 
compounds in the stack exit gas from a 
sewage sludge incinerator measured using 
a flame ionization detection instrument 
referenced to propane. 

fb) — The ver s ion of the Code of Federal Rcgula ^ 
tions incorporated in this Rule is that of February 
15, 1991, and does not include any subsequent 
amendments or edition s to the referenced material. 

Statutory Authority G.S. 143-213; 143-215. 3(a)(1). 

.1203 TEST METHODS AND 
PROCEDURES 

(a) The test methods and procedures described 
in Rule .0501 of this Subchapter and in 40 CFR 
Part 60 Appendix A and 40 CFR Part 61 Appen- 
dix B shall be used to determine compliance with 
emission rates. The test method for determining 
metals emissions from stationary combustion 
sources, commonly called Method 5 (interim), 
published by the U.S. Environmental Protection 
Agency on August 28, 1989, shall be used to 
determine emission rates for metals. Method 5 
(interim) shall be used to sample for 
chromium(VI), and SW 846 Method 0013 NIOSH 
Method 7600 shall be used for the analysis. A 
copy of Method 5 (interim) and SW 846 Method 
0013 NIOSH Method 7600 may be obtained from 
the North Carolina Division of Environmental 
Management. 

(b) The Director may require the owner or 
operator to test his incinerator to demonstrate 
compliance with the emission standards in Rule 
.1205 of this Section. 

(c) For the emission standards in Rule 
.1205(b)(1), (b)(2), (f), and (g) of this Section, 



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compliance shall be determined by averaging 
emissions over a one-hour period. 

(d) The Code of Federal Regulations and 

NIOSH method in thi s Rule arc adopted by 
reference in accordance with G.S. 150B 1 4 (c). 

(d) The owner or operator of a sewage sludge 
incinerator shall perform testing to determine 
pollutant control efficiencies of any pollution 
control equipment and obtain information on 
operational parameters, including combustion 
temperature, to be placed in an air quality permit. 

{e} Referenced document SW-846 "Test 
Methods for Evaluating Solid Waste". Third 
Edition, cited by this Rule is hereby incorporated 
by reference and does not include subsequent 
amendments or editions. A copy of this document 
is available for inspection at the North Carolina 
Division of Environmental Management Library 
located at 512 North Salisbury Street. Raleigh. NC 
27603. Copies of this document may be obtained 
through the US Government Printing Office, 
Superintendent of Documents, P.O. Box 371954, 
Pittsburgh, PA 15250-7954, or by calling (202) 
783-3238. The cost of this document is three 
hundred nineteen dollars ($319.00). 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(5). 

.1204 REPORTING AND RECORDKEEPING 

(a) The reporting and recordkeeping 
requirements of Rule .1105 of this Subchapter 
shall apply to all incinerators in addition to any 
reporting and recordkeeping requirements that may 
be contained in any other rules. 

(b) The owner or operator of an incinerator shall 
maintain and operate a continuous temperature 
measuring and recording device for the primary 
chamber and, where there is a secondary chamber, 
for the secondary chamber. The owner or 
operator of an incinerator that has installed air 
pollution abatement equipment to reduce emissions 
of hydrogen chloride shall install, operate, and 
maintain continuous monitoring equipment to 
measure pH for wet scrubber systems and rate of 
alkaline injection for dry scrubber systems. The 
Director shall require the owner or operator of an 
incinerator with a permitted charge rate of 750 
pounds per hour or more to install, operate, and 
maintain continuous monitors for oxygen or for 
carbon monoxide or both as he deems appropriate. 
The Director may require the owner or operator of 
an incinerator with a permitted charge rate of less 
than 750 pounds per hour to install, operate, and 
maintain monitors for oxygen or for carbon 



monoxide or both as he deems appropriate. 

(c) In addition to the requirements of Paragraphs 
(a) and Ob) of this Rule, the owner or operator of 
a sewage sludge incinerator shall: 

(1) install, operate, and maintain, for each 
incinerator. continuous emission 
monitors to determine the following: 

(A) total hydrocarbon concentration of the 
incinerator stack exit gas in 
accordance with 40 CFR 503.45(a) 
unless the requirements for 
continuously monitoring carbon 
monoxide as provided in 40 CFR 
503.40(c) are satisfied: 

(B) oxygen concentration of the 
incinerator stack exit gas; and 

(C) moisture content of the incinerator 
stack exit gas: 

(2) monitor the concentrations of beryllium 
and mercury from the sludge fed to the 
incinerator at least as frequently as 
required under Rule .0525 of this 
Subchapter but in no case less than 
once per year; 

(3) monitor the concentrations of arsenic, 
cadmium, chromium, lead, and nickel 
in the sewage sludge fed to the 
incinerator at least as frequently as 
re quired under 40 CFR 503.46(a)(2) 
and (3): 

(4) maintain records of all material 
required under Rule .1203 and .1204 of 
this Section in accordance with 40 CFR 
503.47: and 

(5) for class I sludge management facilities 
(as defined in 40 CFR 503.9). POTWs 
£as defined in 40 CFR 501.2) with a 
design flow rate equal to or greater 
than one million gallons per day, and 
POTWs that serve a population of 
10,000 people or greater, submit the 
information recorded in Subparagraph 
(c)(4) of this Rule to the Director on or 
before February 19 of each year. 

(d) fe)All monitoring devices and systems 
required by this Rule shall be subject to a quality 
assurance program approved by the Director. 
Such quality assurance program shall include 
procedures and frequencies for calibration, 
standards traceability, operational checks, 
maintenance, auditing, data validation, and a 
schedule for implementing the quality assurance 
program. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 



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1264 



PROPOSED RULES 



215. 107(a)(4), (5). 

.1205 EMISSION STANDARDS 

(a) The emission standards in this Rule apply to 
all incinerators except where Rule .0524 or .0525 
of this Subchapter applies except that Paragraphs 
(i)(2) and (4) of this Rule shall control in any 
event. 

(b) Particulate matter. Hazardous waste 
incinerators shall comply with Subparagraph (3) of 
this Paragraph. Conical incinerators covered by 
Rule .0523 of this Subchapter shall comply with 
that Rule instead of this Paragraph. All other 
incinerators shall comply with one of the following 
emission standards for particulate matter: 

(1) The emission of particulate matter from 
any stack or chimney of an incinerator 
shall not exceed: 

Allowable Emission Rate 
Refuse Charge For Particulate Matter 
In Lb/Hour In Lb/Hour 

to 100 0.2 

200 0.4 

500 1.0 

1,000 2.0 

2,000 and Above 4.0 

For a refuse charge between any two 
consecutive rates stated in the preceding 
table, the allowable emissions rate for 
particulate matter shall be calculated by 
the equation E=0.002P E = allowable 
emission rate for particulate matter in 
lb/hour. P = refuse charge in lb/hour. 

(2) Instead of meeting the standards in 
Paragraph (b)(1) of this Regulation 
Rule , the owner or operator of an 
incinerator may choose to limit 
particulate emissions from the 
incinerator to 0.08 grains per dry 
standard cubic foot corrected to 12 
percent carbon dioxide. In order to 
choose this option, the owner or 
operator of the incinerator shall 
demonstrate that the particulate ambient 
air quality standards will not be 
violated. To correct to 12 percent 
carbon dioxide, the measured 
concentration of particulate matter is 
multiplied by 12 and divided by the 
measured percent carbon dioxide. 

(3) Hazardous waste incinerators shall meet 
the particulate matter requirements of 
40 CFR 264.343(c). 

(c) Sulfur dioxide. Incinerators shall comply 



with Rule .0516 of this Subchapter. 

(d) Visible emissions. Incinerators shall comply 
with Rule .0521 of this Subchapter. 

(e) Odorous emissions. Incinerators shall 
comply with Rule .0522 of this Subchapter. 

(f) Hydrogen chloride. Except for hazardous 
waste incinerators, emissions of hydrogen chloride 
from an incinerator shall not exceed four pounds 
per hour unless it is reduced by at least 90 percent 
by weight or to no more than 50 parts per million 
by volume corrected to seven percent oxygen (dry 
basis). Hazardous waste incinerators shall meet 
the hydrogen chloride emissions requirements of 
40 CFR 264.343(b). 

(g) Mercury emissions. Mercury emissions 
from sludge incinerators and sewage sludge 
incinerators are regulated under 15 A NCAC 2D 
.0525(a)(4) of this Subchapter . Emissions of 
mercury and mercury compounds from the stack 
or chimney of a municipal solid waste incinerator 
shall not exceed 0.29 pounds per hour. Emissions 
of mercury and mercury compounds from the stack 
or chimney of a hazardous waste incinerator, 
medical waste incinerator, and any other type 
incinerator shall not exceed 0.032 pounds per 
hour. 

(h) Beryllium Emissions. Beryllium emissions 
from sludge incinerators and sewage sludge 
incinerators shall comply with 15A NCAC 2D 
■0525(a)(2). 

£i} Lead Emissions. The daily concentration of 
lead in sewage sludge fed to a sewage sludge 
incinerator shall meet the requirements specified in 
40 CFR 503.43(c). 

£j) Other Metal Emissions. The daily 
concentration of arsenic, cadmium, chromium, and 
nickel in sewage sludge fed to a sewage sludge 
incinerator shall meet the requirements specified in 
40 CFR 503.43(d). 

(k) {h)The owner or operator of an incinerator 
shall demonstrate compliance with Section . 1 100 
of this Subchapter in accordance with 15A NCAC 
2H .0610. 
£1} (i)Ambient standards. 
(1) In addition to the ambient air quality 
standards in Section .0400 of this 
Subchapter, the following ambient air 
quality standards, which are an annual 
average, in milligrams per cubic meter 
at 77° F (25° C) and 29.92 inches (760 
mm) of mercury pressure shall apply 
aggregately to all incinerators at a 
facility: 

(A) arsenic and compounds 2.3xl0' 7 

(B) beryllium and compounds 4.1x10"* 



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PROPOSED RULES 



(C) cadmium and compounds 5.5x10"* 

(D) chromium (VI) and 

compounds 8.3x10 8 

(2) When Subparagraph (1) of this 
Paragraph and either Rule .0524 or 
.0525 of this Subchapter regulate the 
same pollutant, the more restrictive 
provision for each pollutant shall apply, 
notwithstanding provisions of Rule 
.0524 or .0525 of this Subchapter to the 
contrary. 

(3) The owner or operator of a facility with 
incinerators shall demonstrate 
compliance with the ambient standards 
in Parts (1)(A) through (D) of this 
Paragraph by following the procedures 
set out in Rule .1106 of this 
Subchapter. Modeling demonstrations 
shall comply with the requirements of 
Rule .0533 of this Subchapter. 

(4) The emission rates computed or used 
under Subparagraph (3) of this 
Paragraph that demonstrate compliance 
with the ambient standards under 
Subparagraph (1) of this Paragraph 
shall be placed in the permit for the 
facility with incinerators as their 
allowable emission limits unless Rule 
.0524 or .0525 of this Subchapter 
requires more restrictive rates. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(3), (4), (5). 

.1206 OPERATIONAL STANDARDS 

(a) The operational standards in this Rule do not 
apply to incinerators where operational standards 
in Rule .0524 or .0525 of this Subchapter apply. 

(b) Hazardous waste incinerators. Hazardous 
waste incinerators shall comply with 15A NCAC 
13A .0001 through .0014, which are administered 
and enforced by the Division of Solid Waste 
Management. 

(c) Medical waste incinerators. Medical waste 
incinerators shall meet the following requirements: 

(1) The primary chamber temperature shall 
be at least 1200°F. 

(2) The secondary chamber temperature 
shall be at least 1800°F. 

(3) Gases generated by the combustion 
shall be subjected to a minimum 
temperature of 1800°F for a period of 
not less than one second. 

Medical waste incinerators shall comply with 15 A 
NCAC 13B .1207(3) and any other pertinent parts 



of 15A NCAC 13B .1200, which are administered 
and enforced by the Division of Solid Waste 
Management. 

(d) Municipal solid waste incinerators. 
Municipal solid waste incinerators shall meet the 
following requirements: 

(1) The concentration of carbon monoxide 
at the combustor outlet shall not exceed 
the concentration in Table 1 of 
Paragraph (a) of 40 CFR 60.36a. The 
incinerator technology named in this 
table is defined under 40 CFR 60.51a. 

(2) The temperature of the exhaust gas 
entering the particulate matter control 
device shall not exceed 450°F. 

(3) Gases generated by the combustion 
shall be subjected to a minimum 
temperature of 1800°F for a period of 
not less than one second. 

(e) Sludge incinerators. The combustion 
temperature in a sludge incinerator shall not be 
greater than 1650 ;F-ef less than 1200°F The 
maximum oxygen content of the exit gas from a 
sludge incinerator stack shall be: 

(1) 12 percent (dry basis) for a multiple 
hearth sewage sludge incinerator, 

(2) seven percent (dry basis) for a fluidized 
bed sewage sludge incinerator, 

(3) nine percent (dry basis) for an electric 
sewage sludge incinerator, and 

(4) 12 percent (dry basis) for a rotary kiln 
s ewage sludge incinerator. 

(f) Sewage sludge incinerators. 

(1) The maximum combustion temperature 
for a sewage sludge incinerator shall be 
placed in the permit and based on 
information obtained during the 
performance test of the sewage sludge 
incinerator to determine pollutant 
control efficiencies. 

(2) The values for the operational 
parameters for the sewage sludge 
incinerator air pollution control 
device(s) shall be placed in the permit 
and be based on information obtained 
during the performance test of the 
sewage sludge incinerator to determine 
pollutant control efficiencies. 

(3) The monthly average concentration for 
total hydrocarbons, or carbon monoxide 
as provide in 40 CFR 503.40(c), in the 
exit gas from a sewage sludge 
incinerator stack, corrected to zero 
percent moisture and seven percent 
oxygen as specified in 40 CFR 503.44. 



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PROPOSED RULES 



shall not exceed 100 parts per million 

on a volumetric basis using the 

continuous emission monitor required in 

Subparagraph .1204(c)(1). 

(g) ff)Crematory incinerators. Gases generated 

by the combustion shall be subjected to a minimum 

temperature of 1600°F for a period of not less than 

one second. 

(h) {g)Other incinerators. All incinerators not 
covered under Paragraphs (a) through ff) £g) of 
this Rule shall meet the following requirement: 
Gases generated by the combustion shall be 
subjected to a minimum temperature of 1800°F for 
a period of not less than one second. The 
temperature of 1800°F shall be maintained at least 
55 minutes out of each 60-minute period, but at no 
time shall the temperature go below 1600°F. 

{i} ^Except during start-up where the 
procedure has been approved in accordance with 
Rule .0535(g) of this Subchapter, waste material 
shall not be loaded into any incinerators covered 
under Paragraphs (c), (d), ff) £g), or fg) {h} when 
the temperature is below the minimum required 
temperature. Start-up procedures may be 

determined on a case-by-case basis in accordance 
with Rule .0535(g) of this Subchapter. 
Incinerators covered under Paragraphs (c), (d), (f) 
(g) , and (g) (h) shall have automatic auxiliary 
burners that are capable of maintaining the 
required minimum temperature in the secondary 
chamber excluding the heat content of the wastes. 

(i) The — version — of the — Code — ef- — Federal 

Regulations incorporated in this Rule is that of 

February — 1-5-; — 1991, and docs not include any 
s ub s equent — amendments — ef — additions — te — the 
referenced material. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(5). 

.1209 COMPLIANCE SCHEDULES 

(a) The owner or operator of an incinerator 
subject to Paragraphs (f), (g), Qt) (k) or tf) (1) of 
Rule . 1205 of this Section or subject to Paragraphs 
(d) through (g) fh) of Rule .1206 of this Section 
except medical waste incinerators and hazardous 
waste incinerators that: 

(1) begins construction after September 30, 
1991, shall be in compliance with Rule 
.1205 of this Section and Paragraphs 
(d) through (fe) £) of Rule .1206 of this 
Section before beginning operation. 

(2) begins construction or is in operation 
before October 1, 1991, shall adhere to 
the following increments of progress 



and schedules: 

(A) Documentation that the incinerator 
meets the requirements of Paragraphs 
(f), (g), G$ {&, and # ffi of Rule 
.1205 of this Section and Paragraphs 
(d) through {h) £Q of Rule .1206 of 
this Section or an air permit 
application including final plans and a 
compliance schedule shall be 
submitted before: 

(i) April 1, 1992, for incinerators at 
plant sites with an incinerator 
capacity of 1000 pounds per hour 
or more; 

(ii) October 1, 1992, for incinerators 
at plant sites with an incinerator 
capacity of less than 1000 pounds 
per hour but 400 pounds per hour 
or more; 

(iii) April 1, 1993, for incinerators at 
plant sites with an incinerator 
capacity of less than 400 pounds 
per hour but 200 pounds per hour 
or more; 

(iv) October 1, 1993, for plant sites 
with an incinerator capacity of 
less than 200 pounds per hour. 

(B) The compliance schedule shall contain 
the following increments of progress: 

(i) a date by which contracts for the 
emission control system or 
process equipment shall be 
awarded or orders shall be issued 
for purchase of component parts; 

(ii) a date by which on-site 
construction or installation of the 
emission control or process 
equipment shall begin; 

(iii) a date by which on-site 
construction or installation of the 
emission control or process 
equipment shall be completed; and 

(iv) a date by which final compliance 
shall be achieved. 

(C) The final compliance date under 
Paragraph (a)(2)(B) of this Rule shall 
not be later than: 

(i) April 1, 1994, for incinerators at 
plant sites with an incinerator 
capacity of 1000 pounds per hour 
or more; 

(ii) October 1, 1994, for incinerators 
at plant sites with an incinerator 
capacity of less than 1000 pounds 
per hour but 400 pounds per hour 



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PROPOSED RULES 



or more; 

(iii) April 1, 1995, for incinerators at 
plant sites with an incinerator 
capacity of less than 400 pounds 
per hour but 200 pounds per hour 
or more; 

(iv) October 1, 1995, for incinerators 
at plant sites with an incinerator 
capacity of less than 200 pounds 
per hour. 

(b) The owner or operator of a medical waste 
incinerator that: 

(1) begins construction after September 30, 
1991, shall be in compliance with Rule 
. 1205 of this Section and Paragraphs (c) 
and {h) £i) of Rule .1206 of this Section 
before beginning operation; 

(2) begins construction or is in operation 
before October 1, 1991, shall adhere to 
the following increments of progress 
and schedules: 

(A) Documentation that the incinerator 
meets the requirements of Paragraphs 
(f), (g), m Ik}, and & ffl of Rule 
.1205 of this Section and Paragraph 
(c) of Rule .1206 of this Section or an 
air permit application including final 
plans and a compliance schedule shall 
be submitted following the schedule 
set out in Paragraph (a)(2)(A) of this 
Rule; 

(B) The compliance schedule shall contain 
the same increments of progress as 
required by Paragraph (a)(2)(B) of 
this Rule; 

(C) Final compliance shall be achieved no 
later than January 1, 1995. 

(c) The owner or operator of a hazardous waste 
incinerator that: 

(1) begins construction after September 30, 
1991, shall be in compliance with Rule 
.1205 of this Section before beginning 
operation; 

(2) begins construction or is in operation 
before October 1, 1991, shall adhere to 
the following increments of progress 
and schedules: 

(A) Documentation that the incinerator 
meets the requirements of Rule .1205 
of this Section or documentation that 
a permit application has been filed 
with the Division of Solid Waste 
Management to make necessary 
modifications to bring the incinerator 
into compliance with Rule .1205 of 



this Section and a compliance 
schedule shall be submitted before 
April 1, 1992; 

(B) The compliance schedule shall contain 
the date by which a permit application 
shall be submitted to the Division of 
Environmental Management and the 
increments of progress required by 
Paragraph (a)(2)(B) of this Rule; 

(C) Final compliance shall be achieved 
within two years after receipt of a 
permit from the Division of Solid 
Waste Management, but before 
October 1, 1995. 

(d) The owner or operator of a sewage sludge 
incinerator shall: 

(1) be in compliance with Rule .1205 and 
.1206 of this Section before beginning 
operation. When compliance with the 
standards requires the construction of 
new pollution control facilities, 
compliance with the standards shall be 
achieved as expeditiously as 
practicable, but in no case later than 
February 19, 1995. 

(2) comply with the monitoring and 
recordkeeping requirements for total 
hydrocarbons in the exit gas from a 
sewage sludge incinerator before 
beginning operation or February 19, 
1995, if compliance with the 
operational standard for total 
hydrocarbons in this Section requires 
construction of new pollution control 
facilities. 

(3) submit a permit application to certify 
compliance with this Section by August 
1 1995. 

(e) {d)The owner or operator shall certify to the 
Director within days after the deadline, for each 
increment of progress, whether the required 
increment of progress has been met. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(4), (5). 

SECTION ,1400 - NITROGEN OXIDES 

.1401 DEFINITIONS 

For the purpose of this Section, the following 
definitions a pply: 

(1) "Acid rain program" means the federal 
program for the reduction of acid rain 
including 40 CFR Parts 72, 75, 76, and 
77. 



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1268 



PROPOSED RULES 



121 



01 



14} 



ID 



16} 



121 
18} 



19} 



(10) 



Oil 



(12) 



"Averaging set of sources" means all the 
stationary sources included in an emis- 
sions averaging plan in accordance to 
Rule .1410 of this Section. 
"Averaging source" means a stationary 
source that is included in an emissions 
averaging plan in accordance to Rule 
.1410 of this Section except during start- 
up and shut-down. 

"Emergency generator" means a station- 
ary internal combustion engine used to 
generate electricity only during the loss 
of primary power at the facility that is 
beyond the control of the owner or oper- 
ator of the facility. 

"Excess emissions" means an emission 
rate that exceeds the applicable RACT 
limitation or standard, except during 
startup and shutdown operations. 
"Lean-burn internal combustion engine" 
means a spark ignition internal combus- 
tion engine originally designed and manu- 
factured to operate with an exhaust oxy- 
gen concentration greater than one per- 
cent. 

"NO T " means nitrogen oxides. 
"Potential emissions" means the quantity 
of NO, which would be emitted at the 
maximum capacity of a stationary source 
to emit NO. under its physical and opera- 
tional design. Any physical or operation- 
al limitation on the capacity of the source 
to emit NO T shall be treated as a part of 
its design if the limitation is federally 
enforceable. Such physical or operation- 
al limitations include air pollution control 
equipment and restrictions on hours of 
operation or on the type or amount of 
material combusted, stored, or processed. 
"RACT limitation" means the numerical 



NO. emission limitation established in 

accordance with this Section to satisfy the 

requirements for RACT. 

"RACT standard" means the method, 

other than the establishment of a RACT 

limitation, established in accordance with 

this Section to satisfy the requirements 

for RACT. 

"Reasonable assurance" means a demon- 

stration to the Director that a method. 



procedure, or technique is possible and 
practical for a source or facility under the 
expected operating conditions. 
"Reasonably Available Control Technolo- 
gy" or "RACT" means the lowest emis- 



(13) 



sion limitation for NO , that a particular 
source is capable of meeting by the appli- 
cation of control technology that is rea- 
sonably available considering technologi- 
cal and economic feasibility. 
"Reasonable effort" means the proper 



(14) 



installation of technology approved by the 
Director to be capable of meeting the 
requirements for RACT and the optimiza- 
tion of such technology, in accordance to 
the manufacturer's recommendations or 
other guidance approved by the Director, 
for a period of not less than six months. 
in an effort to meet the applicable RACT 
limitation for a source. 
"Rich-burn internal combustion engine" 
means a spark ignition internal combus- 
tion engine originally designed and manu- 



(15) 
(16) 
(171 

(18) 



factured to operate with an exhaust oxy 
gen concentration less than or equal to 
one percent. 

"Shutdown" means the cessation of oper- 
ation of a source or emission control 
equipment. 

"Startup" means the setting in operation 
of a source or emission control equip- 
ment. 

"Stationary internal combustion engine" 
means an internal combustion engine that 
is not self propelled; however, it may be 
mounted on a vehicle for portability. 
"Utility boiler" means a steam generating 
unit that is used for the generation of 
electricity for commercial use. 



Statutory Authority G.S. 143-215. 3(a)(1). 

.1402 APPLICABILITY 

(a) With the exceptions stated in Paragraph (c) 
of this Rule, this Section shall apply, in accor- 
dance with Rule .1403 of this Section, to all 
sources of nitrogen oxides located in any of the 
following areas, and in that area only, when the 
Director notices in the North Carolina Register 
that the area is in violation of the ambient air 
quality standard for ozone: 

(1) Charlotte/Gastonia, consisting of 

Mecklenburg and Gaston Counties; 
£2} Greensboro/Winston-Salem/High Point, 
consisting of Davidson, Forsyth, and 
Guilford Counties and the p art of Davie 
County bounded by the Yadkin River, 
Dutchmans Creek, North Carolina 
Highway 801, Fulton Creek and back 
to Yadkin River to the extent needed as 



1269 



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November 15, 1994 



9:16 



PROPOSED RULES 



determined through photochemical grid 

modeling; or 

(3) Raleigh/Durham, consisting of Durham 

and Wake Counties and Dutchville 

Township in Granville County to the 

extent needed as determined through 

photochemical grid modeling. 

At least one week before the scheduled publication 

date of the North Carolina Register containing the 

Director's notice of violation, the Director shall 

send written notification to all permitted facilities 

within the area of violation that are, or may be. 



demonstrate 
applicable 



compliance with the 
RACT limitation in 



subject to the requirements of this Section as a 
result of the violation. Violations of the ambient 
air quality standard for ozone shall be determined 
in accordance with 40 CFR 50.9. 
(b) This Section does not app ly to: 

(1) any sources not required to obtain an 
air permit under 15A NCAC 2Q .0102; 

(2) any incinerator, or thermal or catalytic 
oxidizer used primarily for the control 
of air pollution; 

(3) emergency generators; 

(4) facilities with a federally enforceable 
potential to emit nitrogen oxides of: 

(A) less than 100 tons per year; and 

(B) less than 560 pounds per calendar day 
from April 1 through October 31. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(5). 

.1403 COMPLIANCE SCHEDULES 

(a) This Rule applies to all sources covered by 
Paragraph £a} or (b) of Rule .1402 of this Section. 

(b) The owner or operator of a source subject to 
this Rule because of the applicability of Paragraph 
£a) or £bj of Rule .1402 of this Section, shall 
adhere to the following increments of progress and 
schedules: 

(1) If compliance with this Section is to be 
achieved through a demonstration to 
certify compliance without source 
modification: 

(A) The owner or operator shall notify the 
Director in writing within six months 
after the Director's notice in the 
North Carolina Register that the 
source is in compliance with the 
a pplicable RACT limitation or RACT 
standard; 

(B) The owner or operator shall perform 
any required testing within 12 months 
after the Director's notice in the 
North Carolina Register to 



accordance with Rule .1404 of this 
Section; and 
(C) The owner or operator shall 
implement any required recordkeeping 
and reporting requirements within 12 
months after the Director's notice in 
the North Carolina Register to 
demonstrate compliance with the 
applicable RACT standard in 
accordance with Rule .1404 of this 
Section. 

(2) If compliance with this Section is to be 
achieved through the installation of 
combustion modification technology or 
other source modification: 

(A) The owner or operator shall submit a 
permit application and a compliance 
schedule within six months after the 
Director's notice in the North 
Carolina Register. 

(B) The compliance schedule shall contain 
the following increments of progress: 

(i) a date by which contracts for 
installation of the modification 
shall be awarded or orders shall 
be issued for purchase of 
component parts; 

(ii) a date by which installation of the 
modification shall begin; 

(iii) a date by which installation of the 
modification shall be completed; 
and 

(iv) if the source is subject to a RACT 
limitation, a date by which 
compliance testing shall be 
completed. 

(C) Final compliance shall be achieved 
within three years after the Director's 
notice in the North Carolina Register 
unless the owner or operator of the 
source petitions the Director for an 
alternative RACT limitation in 
accordance with Rule .1412 of this 
Section. If such a petition is made, 
final compliance shall be achieved 
within four years after the Director's 
notice in the North Carolina Register. 

(3) If compliance with this Section is to be 
achieved through the implementation of 
an emissions averaging plan as provided 
for in Rule .1410 of this Section: 

(A) The owner or operator shall abide by 
the applicable requirements of 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1270 



PROPOSED RULES 



£B] 



(Q 



14] 



(A) 



1BJ 



{£) 



Subparagraphs (b)(1) and (b)(2) of 
this Rule for certification or 
modification of each source to be 
included under the averaging plan; 
The owner or operator shall submit a 
plan to implement an emissions 
averaging plan in accordance with 
Rule .1410 of this Section within six 
months after the Director's notice in 
the North Carolina Register: 
Final compliance shall be achieved 
within one year after the Director's 
notice in the North Carolina Register 
unless implementation of the 
emissions averaging plan requires the 
modification of one or more of the 
averaging sources. If modification of 
one or more of the averaging sources 
is required, final compliance shall be 
achieved within three years; 
If compliance with this Section is to be 
achieved through the implementation of 
seasonal fuel switching program as 
provided for in Rule .1411 of this 
Section: 
The owner or operator shall make all 
necessary modifications in accordance 
with Subparagraph (b)(2) of this Rule. 
The owner or operator shall include a 
plan for complying with the 
requirements of Rule .1411 of this 
Section with the permit application 
required under Part (A) of this 
Subparagraph. 
Final compliance 



shall be achieved 



within three years after the Director's 
notice in the North Carolina Register. 

(c) The owner or operator shall certify to the 
Director, within five days after the deadline for 
each increment of progress in Paragraph (b) of this 
Rule, whether the required increment of progress 
has been met. 

(d) With such exception as the Director may 
allow, the owner or operator of any source subject 
to this Rule shall continue to comply with any 
applicable requirements for the control of nitrogen 
oxides until such time as the source complies with 
applicable rules in this Section or until the final 
compliance date set forth in this Rule, which ever 
comes first. The Director may allow the following 
exceptions: 

(1) testing 



121 



of combustion control 
modifications; or 

adding or testing equipment or methods 
for the application of RACT. 



(e) The owner or operator of any new source of 
nitrogen oxides not in existence or under 
construction as of the date the Director notices in 
the North Carolina Register in accordance with 
Paragraph (a) or £b] of Rule .1402 of this Section, 
shall comply with all applicable rules in this 
Section upon start-up of the source. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.68; 143-215. 107(a)(5). 

.1404 RECORDKEEPING: REPORTING: 
MONITORING: 

(a) The owner or operator of any source subject 
to the requirements of this Section shall maintain 
all records necessary for determining compliance 
with all applicable RACT limitations and standards 
of this Section for at least five years after. 

(b) When requested by the Director, the owner 
or operator of any source subject to the 
requirements of this Section shall submit to the 
Director any information necessary to determine 
the compliance status of an affected source. 

(c) Within 30 days of becoming aware of an 
occurrence of excess emissions from a source 
subject to the requirements of this Section, the 
owner or operator shall notify the Director and 
provide the following information: 

(1) the name and location of the facility; 
the source that caused the excess 



12) 
ill 
14} 
15] 



emissions; 

the time and date the excess emissions 



were discovered: 

the cause and duration of the excess 

emissions; 

for sources subject to a RACT 

limitation, the estimated rate of 

emissions and the data and calculations 



£6} 



used to determine the magnitude of the 

excess emissions; and 

the corrective actions and schedule 



proposed to correct the conditions 
causing the excess emissions. 

(d) When required, the owner or operator of a 
source subject to the requirements of this Section 
shall operate and maintain a continuous emission 
monitoring system in accordance with 40 CFR, 
Part 60, Appendix R 

(e) Data from continuous emissions monitoring 
systems shall be available for at least 95 percent of 
the time the source is operated for the applicable 
averaging period. 

(f) When compliance with a RACT limitation 
established for a source subject to the requirements 
of this Section is determined using a continuous 



1271 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



PROPOSED RULES 



emissions monitoring system, the following 
averaging times shall apply: 

(1) 24 hour rolling average computed and 
recorded each hour from April J. 
through October 31; and 

(2) 30 day rolling average computed and 
recorded each day at all other times. 

£g} When compliance with a RACT limitation 
established for a source subject to the requirements 
of this Section is not determined using a 
continuous emissions monitoring system, 
compliance shall be determined using source 
testing in accordance with 40 CFR. Part 60. 
A ppendix A. or any equivalent test method, 
approved by the Director. Where source testing is 
used to determine compliance with a RACT 
limitation established in accordance with this 
Section, testing shall be conducted at least annually 
in accordance with Rule .1415 of this Section. 



Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(5). 



Fuel/Boiler Type 

Coal (Dry Bottom) 
Oil and/or Gas 



Firing Method 
Tangential Wall 



0.45 
0.20 



0.50 
0.30 



(c) If necessary, the owner or operator shall 
install combustion modification technology, or 
other NO T control technology approved by the 
Director, in order to comply with the applicable 
RACT limitation set forth in Paragraph (b) of this 
Rule. If. after reasonable effort as defined in Rule 
.1401 of this Section, the emissions from a utility 
boiler are greater than the applicable RACT 
limitation, or the requirements of this Rule is not 
RACT for the particular utility boiler, the owner 
or operator may petition the Director for an 
alternative RACT limitation or standard in 
accordance with Rule .1412 of this Section^. 

(d) Compliance with the RACT limitation 
established for a utility boiler shall be determined 
using a continuous emissions monitoring system. 



.1405 CIRCUMVENTION 

(a) An owner or operator subject to this Section 
shall not build, erect install or use any article, 
machine, equipment, process, or method the use of 
which conceals an emission which would otherwise 
constitute a violation of an a pplicable rule. 

(b) Paragraph (a) of this Rule includes the use of 
gaseous diluent to achieve compliance and the 
piecemeal carrying out of an operation to avoid 
coverage by a rule that applies only to operations 
larger than a specified size. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(5). 

.1406 UTILITY BOILERS 

(a) The owner or operator of an utility boiler 
shall apply RACT according to Paragraph (b) of 
this Rule unless the owner or operator chooses the 
option of: 

(1) emissions averaging under Rule .1410 
of this Section, or 

(2) seasonal fuel switching under Rule 
.1411 of this Section. 

(b) Emissions of NO , from an utility boiler shall 
not exceed the following RACT limitations for 
NO T : 

MAXIMUM ALLOWABLE NO y EMISSION 
RATES FOR UTILITY BOILERS 
(POUNDS PER MILLION BTU) 



Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(5). 

. 1 407 NON-UTILITY BOILERS 
AND PROCESS HEATERS 

(a) The owner or operator of a non-utility boiler 
or process heater subject to the requirements of 
this Section as determined by Rule .1402 of this 
Section with a maximum heat input rate of less 
than or equal to 50 million Btu per hour shall 
apply RACT through an annual tune up performed 
in accordance with Rule .1414 of this Section. 
The owner or operator of a non-utility boiler or 
process heater subject to the requirements of this 
Paragraph shall maintain records of all tune ups 
performed for each source in accordance with Rule 
.1404 of this Section. 

(b) The owner or operator of a non-utility boiler 
or process heater with a maximum heat input rate 
less than or equal to 250 million Btu per hour but 
greater than 50 million Btu per hour shall app ly 
RACT by either: 

(1) installation of combustion modification 
technology or other NO , control 
technology approved by the Director 
and maintenance, including annual tune- 
ups and recordkeeping: or 

(2) demonstration through annual source 
testing to the satisfaction of the 
Director that the source complies with 
the applicable RACT limitation listed in 
Subparagraph (c) of this Rule. 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1272 



PROPOSED RULES 



(c) Unless the owner or operator chooses the 
option of: 

(1) emissions averaging under Rule .1410 
of this Section, or 

(2) seasonal fuel switching under Rule 
.141 1 of this Section, 

emissions of NO , from a non-utility boiler or 
process heater with a maximum heat input rate 
greater than 250 million Btu per hour shall not 
exceed the following RACT limitations: 

MAXIMUM ALLOWABLE NCX EMISSION 

RAT li.S FOR NON-UTILITY BOILERS 

(POUNDS PER MILLION BTU) 



Fuel/Boiler Type 



Firing Method 
Tangential Wall Stoker or 



Coal (Wet Bottom) 1.0 

Coal (Dry Bottom) 0.45 
Wood or Refuse 0.20 



Other 

L0 N/A 
0.50 



Oil and/or Gas 



0.20 



0.30 
0.30 



0.40 
0.20 
0.20 



If necessary, the owner or operator shall install 
combustion modification technology, or other NO , 
control technology approved by. the Director, in an 
effort to comply with the applicable RACT 
limitation set forth in this Paragraph. If, after 
reasonable effort as defined in Rule .1401 of this 
Section, the emissions from a non-utility boiler or 
process heater are greater than the applicable 
RACT limitation, or the requirements of this Rule 
is not RACT for the particular non-utility boiler or 
process heater, the owner or operator may petition 
the Director for an alternative RACT limitation or 
standard in accordance with Rule .1412 of this 
Section- 
id) Compliance with the RACT limitation 
established for a non-utility boiler or process 
heater shall be determined: 

(1) using a continuous emissions 
monitoring system for non-utility 
boilers or process heaters with a 
maximum heat input rate greater than 
250 million Bru per hour; or 

(2) using annual source testing in 
accordance with Rule .1415 of this 
Section for non-utility boilers or 
process heaters with a maximum heat 
input rate less than or equal to 250 
million Btu per hour that elect to satisfy 
RACT through Subparagraph (b)(2) of 
this Rule. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 



215. 107(a)(5). 

.1408 STATIONARY GAS TURBINES 

(a) The owner or operator of a stationary gas 
turbine with a heat input rate greater than 100 
million Btu/hr and subject to the requirements of 
this Section as determined by Rule .1402 of this 
Section shall apply RACT according to Paragraph 
(b) of this Rule unless the owner or operator 
chooses the option emissions averaging under Rule 
.1410 of this Section. 

fb) Emissions of NO , from a stationary gas 
turbine shall not exceed 75 ppm by volume 
corrected to J_5 percent oxygen for gas-fired 
turbines and 95 ppm by volume corrected to 15 
percent oxygen for oil-fired turbines. 

(c) If necessary, the owner or operator shall 
install combustion modification technology, or 
other NO, control technology approved by the 
Director, in order to comply with the applicable 
RACT limitation set forth in this Paragraph. If, 
after reasonable effort as defined in Rule .1401 of 
this Section, the emissions from a stationary gas 
turbine are greater than the applicable RACT 
limitation, or the requirements of this Rule is not 
RACT for the particular stationary gas turbine, the 
owner or operator may petition the Director for an 
alternative RACT limitation or standard in 
accordance with Rule .1412 of this Section. 



(d) Compliance with the RACT limitation 
established for a stationary gas turbine shall be 
determined: 

continuous emissions 



ill 



using 

monitoring system, or NO . emission 
estimation protocol as allowed under 
the 40 CFR Part 75 Appendix E for 
compliance with the Acid Rain Program 
where Administrator is replace by 
Director and the correlation for NO. 
emission rate is performed for the NO. 
concentration at J_5 percent oxygen, for 
stationary gas turbines with a maximum 
heat input rate greater than 250 million 
Btu per hour: or 

using annual source testing in 
accordance with Rule .1415 of this 
Section for stationary gas turbines with 
a maximum heat input rate less than or 
equal to 250 million Btu per hour. 



Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(5). 

.1409 STATIONARY INTERNAL 
COMBUSTION ENGINES 



£2} 



1273 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



PROPOSED RULES 



(a) The owner or operator of a stationary 
internal combustion engine having a rated capacity 
pf 650 horsepower or more and subject to the 
requirements of this Section as determined by Rule 
.1402 of thii Section shall app ly RACT in 
accordance with Paragraph (b) of this Rule. 

(b) Emissions of NO . from a stationary internal 
combustion engine shall not exceed the following 
RACT limitations: 

MAXIMUM ALLOWABLE NCv EMISSION 

RATES FOR STATIONARY INTERNAL 

COMBUSTION ENGINES (GRAMS PER 

HORSEPOWER HOUR) 



Engine Type 
Rich-burn 
Lean-burn 
Compression 
Ignition 



Fuel Type 
Gaseous 
Gaseous 
Liquid 



Limitation 
2J 

1A 
8.0 



(c) If necessary, the owner or operator shall 
install NO , control technology a pproved by the 
Director in order to comply with the applicable 
RACT limitation set forth in Paragraph (b) of this 
Rule. If, after reasonable effort as defined in Rule 
.1401 of this Section, the emissions from a 
stationary internal combustion engine are greater 
than the applicable RACT limitation, or the 
requirements of this Rule is not RACT for the 
particular stationary internal combustion engine, 
the owner or operator shall petition the Director 
for an alternative RACT limitation or standard in 
accordance with Rule .1412 of this Section. 

(d) Compliance with the RACT limitation 
established for a stationary internal combustion 
engine shall be determined using annual source 
testing. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(5). 

.1410 EMISSIONS AVERAGING 

(a) With the exceptions hi Paragraph (c) of this 
Rule, the owner or operator of a facility with two 
or more sources with comparable stack height 
subject to the requirements of this Section as 
determined by Rule . 1402 of this Section may elect 
to apply RACT through the implementation of an 
emissions averaging plan in accordance with 
Paragraph (b) of this Rule, provided the total NO , 
emissions from the averaged set of sources based 
on the total heat input are equal to or less than the 
NO, emissions that would have occurred if each 
source complied with the applicable RACT 



limitation. 

(b) To request approval of an emissions 
averaging plan to comply with the requirements of 
this Section, the owner or operator of a facility 
shall submit a written request to the Director 
including the following information: 

(1) the name and location of the facility: 

information identifying each source to 

be included under the averaging plan; 

the maximum heat input rate for each 

source; 

the fuel or fuels combusted in each 



(2) 
(3) 

141 
15} 



source; 

the maximum allowable NO, emission 

rate proposed for each averaging 

source; 

(6) a demonstration that the averaging set 
of sources, operating together at the 
maximum daily heat input rate, will be 
less than or equal to the NO, emissions 
if each source complied with the 
a pplicable RACT limitation; 

(7) an operation plan to provide reasonable 
assurance that the averaging set of 
sources will satisfy Subparagraph (5) of 
this Paragraph when the set is not 
operated at the maximum daily heat 
input rate; and 

(8) the method to be used to determine the 
actual NO, emissions from each source. 

(c) Sources that have obtained an alternative 
RACT limitation as provided by Rule .1412 of this 
Section or that apply RACT through seasonal fuel 
switching as provided by Rule .1411 of this 
Section are not eligible to participate in an 
emissions averaging plan under this Rule. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(5). 

.1411 SEASONAL FUEL SWITCHING 

(a) The owner or operator of a utility or non- 
utility coal-fired boiler subject to the requirements 
of this Section as determined by Rule .1402 of this 
Section may elect to apply RACT through the 
seasonal combustion of natural gas in accordance 
with Paragraph (b) of this Rule. This option is not 
available to a boiler that used natural gas as its 
primary fuel in 1990 or has used natural gas as its 
primary fuel during any year since 1990. 
Compliance with this Section in accordance with 
this Rule does not remove or reduce any a pplicable 
requirement of the Acid Rain Program. 

(b) To comply with the requirements of this 
Section through the seasonal combustion of natural 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1274 



PROPOSED RULES 



gas, the owner or operator shall submit to the 
Director the following information: 

(1) the name and location of the facility; 

(2) information identifying the source to 
use seasonal combustion of natural gas 
for compliance: 

(3) the maximum heat input rate for each 
source; 

(4) a demonstration that the source will 
comply the applicable RACT limitation 
for the combustion of coal from April I 
through October 31; 

(5) a written statement from the natural gas 
supplier providing reasonable assurance 
that the fuel will be available from 
April 1 through October 31. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(5). 

.1412 PETITION FOR ALTERNATIVE 
LIMITATIONS 

(a) If the owner or operator of a source subject 
to the requirements of this Section as determined 
by Rule .1402 of this Section: 

(1) cannot achieve compliance with the 
applicable RACT limitation after the 
installation and optimization of 
combustion modification technology or 
other NO, control technology approved 
by the Director to satisfy the 
requirements for RACT, or the 
requirements of this Section is not 
RACT for the particular source; and 

(2) cannot provide reasonable assurance for 
overall compliance at a facility through 
the implementation of an emissions 
averaging plan as provided for in Rule 
.1410 of this Section; 

the owner or operator may petition the Director 
for an alternative RACT limitation in accordance 
with Paragraph (b) of this Rule. 

(b) To petition the Director for an alternative 
RACT limitation, the owner or operator of the 
source shall submit: 

the name and location of the facility; 

information identifying the source for 

which an alternative RACT limitation is 

being requested; 

the maximum heat input rate for the 

source; 

the fuel or fuels combusted in the 



ID 

£21 



13} 
£41 
151 



the maximum allowable NO, emission 
rate proposed for the source; 



(6) a demonstration that the source has 
satisfied the requirements to apply for 
an alternative RACT limitation under 
Paragraph (a) of this Rule; and 

(7) a demonstration that the proposed 
alternative RACT limitation satisfies the 
requirements for RACT, 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(5). 

.1413 SOURCES NOT LISTED IN 
THIS SECTION 

(a) The owner or operator of any source of 
nitrogen oxides that is not listed in this Section but 
is subject to the requirements of this Section as 
determined in Rule .1402 of this Section shall 
apply RACT in accordance with Paragraph (b) of 
this Rule, 

(b) To submit a proposal to apply a RACT 
limitation or standard to a source of nitrogen 
oxides that is not listed in this Section, the owner 
or operator of the source shall submit: 

(1) the name and location of the facility; 

(2) information identifying the source for 
which a RACT limitation or standard is 
being proposed; 
a demonstration that shows the 



£21 



£41 



proposed RACT limitation or standard 

satisfies the requirements for RACT; 

and 

a proposal for demonstrating 

compliance with the proposed RACT 

limitation or standard. 



Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(5). 

.1414 TUNE-UP REQUIREMENTS 

(a) When a tune-up to a combustion process is 
required for compliance with this Section, the 
owner or operator shall: 

(1) inspect each burner and clean or 
replace any component of the burner as 
necessary to improve boiler efficiency; 
£21 inspect the flame pattern and make any 
adjustments to the burner, or burners, 
necessary to optimize the flame pattern 
to minimize total emissions of NO . and 
carbon monoxide; 
£3J inspect the combustion control system 
to ensure that the air-to fuel ratio is 
correctly calibrated and operating 
properly; 
£41 inspect any other component of the 



1275 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



PROPOSED RULES 



boiler and make adjustments or repairs 

as necessary to improve boiler 

efficiency; and 
(5) adjust the air-to-fuel ratio to minimize 

excess air and maximize boiler 

efficiency. 
The owner or operator shall perform the tune-up in 
accordance with a unit specific protocol approved 
by. the Director before the tune-up is performed. 

(b) The owner or operator shall maintain records 
of tune-ups performed to comply with this Section 
in accordance with Rule .1404 of this Section. 
The following information shall be included for 
each source: 

(1) the date and time the tune-up started 
and ended; 

(2) the person responsible for performing 
the tune-up; 

(3) the checklist for inspection of the 
burner, flame pattern, combustion 
control system, and all other 
components of the boiler identified in 
the protocol, noting any repairs or 
replacements made; 

£4} the oxygen or carbon dioxide 
concentration of the stack gas, the 
carbon monoxide concentration of the 
stack gas or smoke spot number, stack 
gas temperature, and any additional 
information necessary to specify the 
o perating conditions of the boiler after 
each adjustment for minimizing excess 
air; and 

(5) any other information requested by the 
Director as a condition of approval of a 
RACT standard. 



owner or operator the basis for requesting a 
demonstration of compliance and shall allow 
reasonable time for testing to be performed. 

(c) The owner or operator shall notify the 
Director and obtain the Director's approval at least 
21 days before beginning a test to demonstrate 
compliance with this Section so that the Director 
may observe the test. The notification required by 
this Paragraph shall include: 

a statement of the purpose of the 



ill 

121 

141 



proposed test; 
the location and 



a description of the 



facility where the test is to take place; 
the proposed test method and a 
description of the test procedures, 
equipment, and sampling points; and 
a schedule setting forth the dates that: 

(A) the test will be conducted and data 
collected; 

(B) the final test report will be submitted. 

(d) The final test report shall be submitted to the 
Director no later than 45 days after the test data 
has been collected. 

(e) The owner or operator shall be responsible 
for all costs associated with any tests required to 
demonstrate compliance with this Section. 

(f) The owner or operator shall maintain records 
of tests performed to demonstrate compliance with 
this Section in accordance with Rule .1404 of this 
Section. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(5). 

SECTION .1500 - TRANSPORTATION 
CONFORMITY 



Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(5). 

.1415 TEST METHODS AND 
PROCEDURES 

{a} Method 7E at 40 CFR Part 60, Appendix A 
or other equivalent method approved by Director 
shall be used when source testing is used to 
demonstrate compliance with a RACT limitation 
established in accordance with this Section. 

(b) When compliance with a RACT limitation 
established in accordance with this Section is 
determined using source testing, such testing shall 
be conducted in accordance with this Rule. The 
owner or operator of a source subject to the 
requirements of this Section shall demonstrate 
compliance when the Director requests such 
demonstration. The Director shall explain to the 



.1501 PURPOSE, SCOPE AND 
APPLICABILITY 

(a) The purpose of this Section is to assure the 
conformity of transportation plans, programs, and 
projects that are developed, funded, or a pproved 
by the United States Department of Transportation 
and by metropolitan planning organizations or 
other recipients of funds under Title 23 U.S.C. or 
the Federal Transit Act (49 U.S.C. 1601 et seq.) 
or State or Local only sources of funds with all 
plans required of areas designated as nonattainment 
or maintenance under 40 CFR 81.334 and listed in 
Paragraph £b] or £cl of this Rule. 

(b) This Section applies to the emissions of 
volatile organic compounds and nitrogen oxides hi 
the following areas: 

(1) Davidson County, 

(2) Durham County, 



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(3) Forsyth County, 
£4] Gaston County, 
£5) Guilford County, 
(6) Mecklenburg County, 
£7] Wake County, 

(8) Dutchville Township in Granville 
County, and 

(9) that part of Davie County bounded by 
the Yadkin River, Dutchmans Creek, 
North Carolina Highway 801. Fulton 
Creek, and back to the Yadkin River. 

(c) This Section applies to the emissions of 
carbon monoxide in the following areas: 

(1) Durham County, 

(2) Forsyth County, 

(3) Mecklenburg County, and 
£4} Wake County. 

£d] The Section applies, in the areas identified in 
Paragraph (b) or £c] of this Rule for the pollutants 
identified in Paragraph £b] or £c) of this Rule, to 
the adoption, acceptance, approval, or support of 
transportation plans, transportation improvement 
programs, and FHWA/FTA projects for which 
conformity determinations are required under 40 
CFR 51.394 and aD other State or locally funded 
only transportation projects with such exceptions 
as allowed by. 40 CFR 51.394(c). 51.460. or 
51.462. 



Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(10). 

.1502 DEFINITIONS 

For the purposes of this Section, the definitions 
contained in 40 CFR 51.392 and the following 
definitions apply: 



ill 



'Consultation" means that one party 



£2} 



confers with another identified party, 
provides all information necessary to that 
party needed for meaningful input, and 
considers and responds to the views of 
that party in a timely, substantive written 
manner prior to any final decision. At 
least two weeks shall be allowed to 
submit comments during consultation 
(except for notification of federal 
agencies and actions specified in 40 CFR 
51.402 that only require notification) and 
such comments and written responses 
shall be made part of the final document. 
"State or local project" means any 
highway or transit project which is 
proposed to receive only funding 
assistance (receives no federal funding) 
or approval through the State or any local 



transportation program. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(10). 

.1503 TRANSPORTATION CONFORMITY 
DETERMINATION 

(a) Conformity analyses, determinations, and 
redeterminations for transportation plans, 
transportation improvement programs. 
FHWA/FTA projects, and State or local projects 
shall be made according to the requirements of 40 
CFR 51.400 and shall comply with the applicable 
requirements of 40 CFR 51.456 and 51.458. For 
the purposes of this Rule State or local projects 
shall be subject to the same requirements under 40 
CFR Part 51 as FHWA/FTA projects. 

(b) Before making a conformity determination, 
the metropolitan planning organizations, local 
transportation departments. North Carolina 
Department of Transportation. United States 
Department of Transportation, the Division of 
Environmental Management, local air pollution 
control agencies, and United States Environmental 
Protection Agency shall consult with each other on 
matters described in 40 CFR 51.402(c). 
Consultation shall begin as early as possible in the 
development of the emissions analysis used to 
support a conformity determination. The agency 
that performs the emissions analysis shall make the 
analysis available to the Division of Environmental 
Management and the general public for comments: 
at least two weeks shall be allowed for review and 
comment on the emissions analysis. The agency 
that performs the emissions analysis shall address 
all comments received and these comments and 
responses thereto shall be included in the final 
document. In the event that the Division of 
Environmental Management disagrees with the 
resolution of its comments, the conflict may be 
escalated to the Governor within 14 days and shall 
be resolved in accordance with 40 CFR 51.402(d). 
The 14-day appeal period shall begin when the 
North Carolina Department of Transportation or 
the metropolitan planning organization notifies the 
Director in writing of the resolution of the 
comments. Any consultation undertaken after the 
conformity determination is made shall include the 
Division of Environmental Management. 

(c) The agency that performs the conformity 
analysis shall notify the Division of Environmental 
Management of: 

(1) any changes in planning or analysis 
assumptions (including land use and 
vehicle miles traveled (VMT) 



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forecasts), and 
(2) any revisions to transportation plans or 
transportation improvement plans that 
add, delete, or change projects that 
require a new emissions analysis 
(including design scope and dates) . 
The agency that performs the conformity analysis 
shall allow the Division of Environmental 
Management at least two weeks to review and 
comment on the proposed change. Comments 
made by the Division of Environmental 
Management and responses thereto made by the 
agency shall become part of the final planning 
document. 

(d) Transportation plans shall satisfy the 
requirements of 40 CFR 51.404. Transportation 
plans and transportation improvement programs 
shall satisfy the fiscal constraints specified in 40 
CFR 51.408. Transportation plans, programs, and 
FHWA/FTA projects shall satisfy the a pplicable 
requirements of 40 CFR 51.410 through 51 .448. 

(e) No recipient of federal funds designated 
under Title 23 U.S.C. or the Federal Transit Act 
shall adopt or approve, nor any other person 
construct, a regionally significant highway or 
transit project, regardless of funding source, unless 
there is a currently conforming transportation plan 
and transportation improvement program consistent 
with the requirements of 40 CFR 51.420 and the 
project conforms with the applicable 
implementation plan consistent with the 
requirements of 40 CFR 51.450. 

(f) The degree of specificity required in a 
transportation plan and the specific travel network 
assumed for air quality modeling shall not preclude 
the consideration of alternatives in the National 
Environmental Policy Act of 1969 process, in 
accordance with 40 CFR 51.406. 

(g) When assisting or a pproving any action with 
air quality-related consequence, the Federal 
Highway Administration and the Federal Transit 
Administration of the Department of 
Transportation shall give priority to the 
implementation of those transportation portions of 
an applicable implementation plan prepared to 
attain and maintain the national ambient air quality 
standards. This priority shall be consistent with 
statutory requirements for allocation of funds 
among states or other jurisdictions. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(10). 

.1504 DETERMINING TRANSPORTATION- 
RELATED EMISSIONS 



£§} The procedures in 40 CFR 51.452 shall be 
used to determine regional transportation-related 
emissions. 

{b} The procedures in 40 CFR 51.454 shall be 
used to determine localized carbon monoxide 
concentrations (hot-spot analysis). 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(10). 

SECTION .1600 - GENERAL 
CONFORMITY 

.1601 PURPOSE, SCOPE AND 
APPLICABILITY 

(a) The purpose of this Section is to assure that 
a federal action conforms with all plans required of 
areas designated as nonattainment or maintenance 
under 40 CFR 81.334 and listed in Paragraph £b) 
or £c} of this Rule. No department, agency, or 
instrumentality of the Federal Government shall 
engage in. support in any way or provide financial 
assistance for, license or permit, or a pprove any 
activity which does not conform to these 
maintenance plans. 

(b) This Section a pplies to the emissions of 
volatile organic compounds and nitrogen oxides ]n 
the following areas: 

(1) Davidson County. 

(2) Durham County, 

(3) Forsyth County, 

(4) Gaston County, 

(5) Guilford County, 

(6) Mecklenburg County, 
{7} Wake County, 

(8) Dutchville Township in Granville 
County, and 

(9) that part of Davie County bounded by 
the Yadkin River, Dutchmans Creek, 
North Carolina Highway 801, Fulton 
Creek, and back to the Yadkin River. 

(c) This Section a pplies to the emissions of 
carbon monoxide in the following areas : 

(1) Durham County. 

(2) Forsyth County, 

(3) Mecklenburg County, and 

(4) Wake County. 

(d) The Section applies, in the areas identified in 
Paragraph {bj or £c) of this Rule for the pollutants 
identified in Paragraph £b] or {c} of this Rule, to 
federal actions not covered by Section .1500 of 
this Subchapter. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(10). 



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.1602 DEFINITIONS 

For the purposes of this Section, the definitions 
contained in 40 CFR 51 .852 apply. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215. 107(a)(10). 

.1603 GENERAL CONFORMITY 
DETERMINATION 

(a) A federal agency shall make a determination 
that a federal action conforms with the 
maintenance plans for the areas identified in Rule 
.1601 of this Section in accordance with the 
requirements of this Section before the action is 
taken with the exceptions specified in 40 CFR 
51.850(c). A conformity determination is required 
for each pollutant where the total of direct and 
indirect emissions caused by a federal action would 
equal or exceed 100 tons per year of carbon 
monoxide, nitrogen oxides, or volatile organic 
compounds, with the exceptions specified in 40 
CFR 51.853(c), (dL or (e^ The Division of 
Environmental Management shall provide technical 
assistance for the analysis necessary to determine 
the conformity of the federal action. 

(b) Notwithstanding any other requirements of 
this Section, actions specified by individual federal 
agencies that have met the requirements of 40 CFR 
51.853(g) and (h) are presumed to conform, except 
as provided in 40 CFR 51.853(i). Where 40 CFR 
51.853(j) is applicable, the requirements of 40 
CFR51.853(i)shall apply. 

(c) Any federal department, agency, or 
instrumentality of the federal government taking an 
action subject to this Section shall comply with the 
requirements of 40 CFR 51.854 through 51.859. 
Any measures that are intended to mitigate air 
quality impacts shall comply with the requirements 
of 40 CFR 51. 860. 

(d) Notwithstanding any other requirement of 
this Section, when the total direct and indirect 
emissions of any pollutant from a federal action 
does not equal or exceed the rates specified in 40 
CFR 51.853(b), but represents 10 percent or more 
of the maintenance area's total emissions of that 
pollutant, the action is defined as a regionally 
significant action and the requirements of 40 CFR 
51.850 and 51.855 through 51.860 shall apply for 
the federal action. 

(e) Notwithstanding any provision of this 
Section, a determination that an action is in 
conformance with the applicable maintenance plan 
does not exempt the action from any other 
requirement of the applicable maintenance plan, 
the National Environmental Policy Act of 1969. as 



amended (42 U.S.C. 4321 et seq.), or the federal 
Clean Air Act. 

Statutory Authority G.S. 143-215. 3(a)(1); 143- 
215.107(a)(10). 

SUBCHAPTER 2Q - AIR QUALITY 
PERMIT PROCEDURES 

SECTION .0800 - POTENTIAL 
EMISSIONS 

.0801 PURPOSE AND SCOPE 

(a) The purpose of this Section is to define 
categories of facilities that are exempted from 
needing a permit under Section .0500 of this 
Subchapter by defining their potential emissions to 
be less than: 

(1) 100 tons per year of each regulated air 
pollutant; 

(2) 10 tons per year of each hazardous air 
pollutant; and 

(3) 25 tons per year of all hazardous air 
pollutants combined. 

(b) A source cannot rely on emission limits or 
caps contained in this Section to justify violation of 
any rate-based emission limits or other applicable 
requirements. 

(c) Although a facility is exempted, by 
complying with this Section, from the permitting 
procedures contained in Section .0500 of this 
Subchapter, it may still need a permit under 
Section .0300 of this Subchapter unless it is 
exempted from needing a permit by Rule .0102 of 
this Subchapter. 

Statutory Authority G.S. 143-215. 3(a); 143- 
215. 107(a)(10); 143-215. 108. 

.0802 GASOLINE SERVICE STATIONS 
AND DISPENSING FACILITIES 

(a) For the purpose of this Rule the following 
definitions apply: 

(1) "Gasoline dispensing facility" means 
any site where gasoline is dispensed to 
motor vehicle gasoline tanks from 
stationary storage tanks. 

(2) "Gasoline service station" means any 
gasoline dispensing facility where 
gasoline is sold to the motoring public 
from stationary storage tanks. 

(b) This Rule only applies to gasoline service 
stations and gasoline dispensing facilities that are 
in compliance with 15A NCAC 2D .0928. 

(c) Potential emissions for gasoline service 



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stations and gasoline dispensing facilities shall be 
determined using actual gasoline throughput. 



(d) Any gasoline service station or gasoline 
dispensing facility that has an annual throughput. 



on a calendar month rolling average basis, of less 
than 15.000,000 gallons shall be exempted from 
the requirements of Section .0500 of this 
Subchapter. 



(e) The owner or operator of any gasoline 
service station or gasoline dispensing facility 



exempted by this Rule from Section .0500 of this 



Subchapter shall submit a report containing the 



information described in Paragraph (f) of this Rule 



if: 



01 



131 



(1) annual throughput exceeds 10,000,000 
gallons, by the end of the month 
following the month that throughput 
exceeds 10.000,000 gallons and every 
12 months thereafter; 
annual throughput exceeds 13.000,000 
gallons, by the end of the month that 
throughput exceeds 13,000,0000 gallons 
and every six months thereafter; or 
annual throughput exceeds 15,000,000 
gallons, by the end of the month that 
throughput exceeds 15,000,000 gallons 
and shall submit a permit application 
pursuant to the procedures in Section 
.0500 of this Subchapter. 

(f) The report required under Paragraph (e) of 
this Rule shall include: 

(1) the name and location of the gasoline 
service station or gasoline dispensing 
facility; 

(2) the annual throughput of gasoline for 
each of the j_2 periods ending on each 
month since the previous report was 
submitted, including monthly gasoline 
throughput for each month required to 
calculate the annual gasoline throughput 
for each 12-month period; and 

(3) the signature of the a ppropriate official 
as identified in Rule .0304(0 of this 
Subchapter certifying as to the truth and 
accuracy of the report. 

(g) The owner or operator of any gasoline 
service station or gasoline dispensing facility 
exempted by this Rule from Section .0500 of this 
Subchapter shall provide documentation of annual 
throughput to the Director upon request. The 
owner or operator of any gasoline service station 
or gasoline dispensing facility exempted by this 
Rule from Section .0500 of this Subchapter shall 
retain records to document annual throughput for 
all 12-month periods during the previous three 



years. 

Statutory Authority G.S. 143-21 5. 3(a); 143- 
215. 107(a)(10); 143-215. 108. 

.0803 COATING, SOLVENT CLEANING, 
GRAPHIC ARTS OPERATIONS 

(a) For the purposes of this Rule, the following 
definitions apply: 

(1) "Coating operation" means a process in 
which paints, enamels, lacquers, 
varnishes, inks, dyes, and other similar 
materials are a pplied to wood, paper, 
metal, plastic, textiles, or other types of 
substrates. 

(2) "Solvent cleaning operation" means the 
use of solvents containing volatile 
organic compounds to clean soils from 
metal, plastic, or other types of 
surfaces. 

£3} "Graphic arts operation" means the 
application of inks to form words, 
designs, or pictures to a substrate, 
usually by a series of application rolls 
each with only partial coverage and 
usually using letterpress, offset 
lithography, rotogravure, or 
flexographic process- 
or) To be covered under this Rule, the owner or 
operator of the facility shall request in writing to 
the Director that potential emissions from the 
facility be determined by this Rule. 

(c) Potential emissions for a coating operation, 
solvent cleaning operation, or graphic arts 
operation shall be determined using actual 
emissions without accounting for any air pollution 
control devices to reduce emissions of volatile 
organic compounds from the coating operation, 
solvent cleaning operation or graphic arts 
operation. All volatile organic compounds and 
hazardous air pollutants that are also volatile 
organic compounds are assumed to eva porate and 
be emitted into the atmosphere at the source. 

(d) This Rule applies to any facility whose 
potential emissions, including actual emissions for 
coating operations, solvent cleaning operations, 
and graphic arts operations, are less than: 

(1) 100 tons per year of volatile organic 
compounds; 

(2) 10 tons per year of each hazardous air 
pollutant; and 

(3) 25 tons per year of all hazardous air 
pollutants combined; 

provided the owner or operator of the facility 
complies with Paragraphs (f) through fi} of this 



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PROPOSED RULES 



Rule, as appropriate, and provided the owner or 
operator of the facility requests to be covered 
under this Rule in accordance with Paragraph (b) 
of this Rule. 

(e) This Rule does not apply to coating 
operations, solvent clean operations, or graphic 
arts operations that are exempted from needing a 
permit under Rule ,0102 of this Subchapter. 

(f) The owner or operator of a facility whose 
potential emissions: 

(1) of volatile organic compounds are less 
than 100 tons per year but equal to or 
more than 75 tons per year; 

(2) of each hazardous air pollutant is less 
than 10 tons per year but equal to or 
more than 7.5 tons per year: and 

(3) of all hazardous air pollutants combined 
are less than 25 tons per year but equal 
to or more than 18 tons per year; 

shall maintain records and submit reports as 
described in Paragraph (g) of this Rule. 

(g) For facilities covered under Paragraph (f) of 
this Rule, the owner or operator shall: 

(1) maintain monthly consumption records 
of each material used containing 
volatile organic compounds as follows : 

(A) quantity of volatile organic compound 
in pounds per gallon of each material 
used, 

(B) pounds of volatile organic compounds 
of each material used per month and 
pounds of volatile organic compounds 
of each material used during the 12- 
month period ending on that month, 

(C) quantity of each hazardous air 
pollutant in pounds per gallon of each 
material used, 

(D) pounds of each hazardous air pollutant 
of each material used per month and 
pounds of each hazardous air pollutant 
of each material used during the 12- 
month period ending on that month, 

(E) quantity of all hazardous air pollutants 
in pounds per gallon of each material 
used, and 

(V) pounds of all hazardous air pollutants 
of each material used per month and 
pounds of all hazardous air pollutants 
of each material used during the 12- 
month period ending on that month; 

(2) submit to the Director each quarter, or 
more frequently if required by a permit 
condition, a report summarizing 
emissions of volatile organic 
compounds and hazardous air pollutants 



containing the following: 

(A) pounds volatile organic compounds 
used: 

(i) for each month during the 

quarter, and 
(ii) for each 12-month period ending 

on each month during the quarter: 

(B) greatest quantity in pounds of an 
individual hazardous air pollutant 
used: 

(i) for each month during the 

quarter, and 
(ii) for each 12-month period ending 

on each month during the quarter: 

(C) pounds of all hazardous air pollutants 
used: 

rij for each month during the 

quarter, and 

(ii) for each 12-month period ending 

on each month during the quarter: 

(3) maintain purchase orders and invoices 

of materials containing volatile organic 

compounds, which shall be made 



£4) 
15} 



available to the Director upon request 
to confirm the general accuracy of the 
reports filed under this Paragraph 
regarding materials usage; 
retain purchase orders and invoices for 
a period of at least three years; 
report to the Director when a 



requirement of this Rule is exceeded 
within one week of occurrence; and 
(6) certify all submittals as to the truth, 
completeness, and accuracy of all 
information recorded and reported over 
the signature of the appropriate official 
as identified in Rule .0304(j) of this 
Subchapter. 
(h) The owner or operator of a facility whose 
potential emissions: 

(1) of volatile organic compounds are less 
than 75 tons per year. 

(2) of each hazardous air pollutants is less 
than 7.5 tons per year, and 

(3) of all hazardous air pollutants combined 
are less than 18 tons per year, 

shall maintain records and submit reports as 
described in Paragraph (i) of this Rule. 

(i) For facilities covered under Paragraph (h) of 
this Rule, the owner or operator shall: 

(1) submit to the Director by February 15th 
of each year, or more frequently if 
required by a permit condition, a report 
summarizing emissions of volatile 
organic compounds and hazardous air 



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pollutants containing the following: 
(A) pounds volatile organic compounds 
used during the previous calendar 



year. 
(B) pounds of the 



highest individual 



hazardous air pollutant used during 
the previous year, and 
(C) pounds of all hazardous air pollutant 
used during the previous year; 

(2) maintain purchase orders and invoices 
of materials containing volatile organic 
compounds, which shall be made 
available to the Director upon request 
to confirm the general accuracy of the 
reports filed under this Paragraph 
regarding materials usage; 

(3) retain purchase orders and invoices for 
a period of at least three years; 

(4) report to the Director any exceedance 
of a requirement of this Rule within one 
week of occurrence; and 

(5) certify all submittals as to the truth, 
completeness, and accuracy of all 
information recorded and reported over 
the signature of the appropriate official 
as identified in Rule .0304(j) of this 



ffl 



Subchapter. 
Copies of all 



records required to be 



maintained under Paragraphs (g} or (i) shall be 
maintained at the facility and shall be available for 
inspection by personnel of the Division on 
demand. 

(k) The Director shall maintain a list of facilities 
covered under this Rule. 



Statutory Authority G.S. 143-215. 3(a); 143- 
215. 107(a)(10); 143-215. 108. 

.0804 DRY CLEANING FACILITIES 

(a) For the purpose of this Rule, the following 
definitions apply: 

(1) "Dry cleaning facility" means an 
establishment with one or more dry 
cleaning systems as defined under 40 
CFR 63.321. 

£2) "Perchloroethylene consumption" means 
the total volume of perchloroethylene 
purchased based upon purchase receipts 
or other reliable measures. 

(b) Potential emissions for dry cleaning facilities 
shall be determined using perchloroethylene 
consumption. 

(c) Any dry cleaning facility that has a yearly 
perchloroethylene consumption as determined 
under 40 CFR 63.323(d) of less than 10 tons shall 



be exempted from the requirements of Section 
.0500 of this Subchapter. 

£d) The owner or operator of a dry cleaning 
facility shall report perchloroethylene consumption 
in accordance with 40 CFR 63.324. 

Statutory Authority G.S. 143-21 5. 3(a); 143- 
215. 107(a)(10); 143-215. 108. 

.0805 GRAIN ELEVATORS 

(a) This Rule applies to grain elevators that only 
receive grain directly from the farm between May 
and November, inclusively, and receives grain at 
no other time and that only clean, dry, grind, or 
store grain before it is transported elsewhere. 

(b) This Rule shall not apply to facilities that 
process grain beyond cleaning, drying, or 
grinding. 

(c) Potential emissions for grain elevators shall 
be determined using actual tons of grain received 
or shi pped, whichever is greater. 

(d) Any grain elevator that receives or ships less 
than 21,000 tons of grain per year shall be 
exempted from the requirements of Section .0500 
of this Subchapter. 

(e) The owner or operator of any grain elevator 
exempted by this Rule from Section .0500 of this 
Subchapter shall submit, by December 1 of each 
year, a report containing the following 
information: 

the name and location of the grain 
elevator: 



ill 
131 



the tons of grain received and shipped 

during that season; and 

the signature of the appropriate official 

as identified in Rule .0304(0 of this 

Subchapter certifying as to the truth and 

accuracy of the report. 

(f) The owner or operator of any grain elevator 

exempted by this Rule from Section .0500 of this 

Subchapter shall provide documentation of annual 

tons of grain received or shipped to the Director 

upon request. The owner or operator of a grain 

elevator exempted by this Rule from Section .0500 

of this Subchapter shall retain records to document 

annual tons of grain received or shi pped for each 

of the previous three years. 

Statutory Authority G.S. 143-21 5. 3(a); 143- 
215. 107(a)(10); 143-215. 108. 

.0806 COTTON GINS 

(a) This Rule applies to cotton gins that only gin 
cotton between September and January, 
inclusively. The Director may extend this time 



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PROPOSED RULES 



period beyond the end of January if the 
Commissioner of Agriculture certifies to the 
Director that the cotton ginning season has been 
delayed because of adverse weather. 

(b) Potential emissions for cotton gins shall be 
determined using actual number of 500-pound 
bales of cotton produced. 

(c) Any cotton gin that gins less than 62,400 
bales of cotton per year shall be exempted from 
the requirements of Section .0500 of this Subchap- 
ter. 

(d) The owner or operator of any cotton gin 
exempted by this Rule from Section .0500 of this 
Subchapter shall submit, by March 1 of each year, 
a report containing the following information: 

(1) the name and location of the cotton gin; 

(2) the number of bales of cotton produced 
during that season; and 

(3) the signature of the appropriate official 
as identified in Rule .0304(0 of this 
Subchapter certifying as to the truth and 
accuracy of the report. 

(6) The owner or operator of any cotton gin 
exempted by this Rule from Section .0500 of this 
Subchapter shall provide documentation of number 
of bales produced to the Director upon request. 
The owner or operator of a cotton gin exempted 
by this Rule from Section .0500 of this Subchapter 
shall retain records to document number of bales 
of cotton produced for each of the previous three 
years. 

Statutory Authority G.S. 143-21 5. 3(a); 143- 
215. 107(a)(10); 143-215. 108. 

.0807 EMERGENCY GENERATORS 

(a) This Rule applies to facilities whose only 
source requiring a permit is one or more 
emergency generators. 

(b) For the purposes of this Rule, "emergency 
generator" means an internal combustion engine 
used to generate electricity only during the loss of 
primary power at the facility that is beyond the 
control of the owner or operator of the facility. 

(c) For the purposes of this Rule, potential 
emissions for emergency generators shall be 
determined using actual fuel consumption. 

(d) Any facilities whose emergency generators 
consume less than: 

(1) 322,000 gallons per year of diesel fuel 
for diesel-powered generators, 

(2) 62,500,000 cubic feet per year of natu- 
ral gas for natural gas-powered genera- 
tors, 

(3) 1,440,000 gallons per year of liquified 



petroleum gas for liquified petroleum 
gas -powered generators, and 
(4) 50,800 gallons per year of gasoline for 
gasoline-powered generators, 
shall be exempted from the requirements of Sec- 
tion .0500 of this Subchapter. 

(e) The owner or operator of any emergency 
generator exempted by this Rule from Section 
.0500 of this Subchapter shall submit, by February 
15th of each year a report containing the following 
information: 

(1) the name and location of facility: 

(2) the types and quantity of fuel consumed 
by emergency generators; and 

(3) the signature of the appropriate official 
as identified in Rule .0304(0 of this 
Subchapter certifying as to the truth and 
accuracy of the report. 

(f) The owner or operator of any facility ex- 
empted by this Rule from Section .0500 of this 
Subchapter shall provide documentation of types 
and quantities of fuel consumed to the Director 
upon request. The owner or operator of a facility 
exempted by this Rule from Section .0500 of this 
Subchapter shall retain records to document types 
and quantities of fuels consumed for each of the 
previous three years. 

Statutory Authority G.S. 143-21 5. 3(a); 143- 
215. 107(a)(10); 143-215. 108. 

****************** 

l\otice is hereby given in accordance with G.S. 
150B-21.2 that the EHNR - Coastal Management 
intends to amend rule cited as 15A NCAC 7H 
.0406. 

1 he proposed effective date of this action is April 
I, 1995. 

1 he public hearing will be conducted at 7:00 
p.m. on December 6, 1994 at the Elizabeth City 
Council Chambers, A. P. Midgett Municipal 
Building, 302 East Colonial Avenue, Elizabeth 
City, NC. 

Mxeason for Proposed Action: This action is in 
response to a petition received from the City of 
Elizabeth City to repeal 15 A NCAC 7H .0406(c)(2) 
since it is no longer necessary to protect potable 
water supply. 



1283 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



PROPOSED RULES 



Comment Procedures: All persons interested in 
this matter are invited to attend the public hearing. 
Jhe Coastal Resources Commission will receive 
mailed written comments postmarked no later than 
December 15, 1994. Any person desiring to 
present lengthy comments is requested to submit a 
written statement for inclusion in the record of 
proceedings at the public hearing. Additional 
information concerning the hearing or the proposal 
may be obtained by contacting David Griffin, 
Division of Coastal Management, Elizabeth City 
Office, 1367 U.S. 17 South, Elizabeth City, NC, 
27909, (919) 264-3901. 

CHAPTER 7 - COASTAL 
MANAGEMENT 

SUBCHAPTER 7H - STATE 
GUIDELINES FOR AREAS OF 
ENVIRONMENTAL CONCERN 

SECTION .0400 - PUBLIC WATER 
SUPPLIES 

.0406 PUBLIC WATER SUPPLY WELL 
FIELDS 

(a) Description. These are areas of 
well-drained sands that extend downward from the 
surface into the shallow ground water table which 
supplies the public with potable water. These 
surficial well fields are confined to a readily 
definable geographic area as identified by the 
North Carolina Department of Environment, 
Health, and Natural Resources with assistance and 
support from affected local governments. 

(b) Use Standards. Development within these 
AEC's shall be consistent with the following 
minimum standards: 

(1) No ground absorption sewage disposal 
or subsurface pollution injection sys- 
tems shall be placed within the desig- 
nated AEC boundary except to replace 
systems existing as of July 24, 1987; 

(2) Development shall not significantly 
limit the quality or quantity of the 
public water supply or the amount of 
rechargeable water; 

(3) The development shall not cause salt 
water intrusion or result in the 
discharge of toxic and/or or soluble 
contaminants into standing or 
groundwater; and 

(4) Groundwater absorption sewage 
treatment systems may also be used 



within the AEC boundary if each of the 
following provisions are met: 

(A) the system is serving development on 
a lot that was platted of record as of 
July 24, 1987; 

(B) there is no other economically viable 
method of waste treatment for the 
permittable development of such lot; 

(C) there is no space outside the bound- 
aries of the AEC on the lot upon 
which the treatment system could be 
located; and 

(D) the Division of Environmental Health, 
Department of Environment, Health, 
and Natural Resources, prior to the 
CAMA permit decision, reviews and 
approves the proposed system as 
complying with existing guidelines. 

(c) Designated public water supply well field s 
field . The CRC has designated the following as a 
public water supply well fi e ld s field which shall be 
subject to the use standards as set out in Paragraph 
(b) of this Rule: 

^ Cape Hatteras Well Field. The Cape 
Hatteras Water Association is supplied 
with raw water from a well field locat- 
ed south of N.C. 12 on Hatteras Island 
between Frisco and Buxton. The area 
of environmental concern is bounded by 
a line located 1,000 feet from the 
centerlines of three tracts. The first 
tract is identified as "well field" on 
maps entitled "Cape Hatteras Wellfield 
Area of Environmental Concern" 
approved by the Coastal Resources 
Commission on July 24, 1987, and 
extends approximately 12,000 feet west 
from Water Association Road. The 
second tract is conterminous with the 
first tract, is identified as "future well 
field" on said maps and extends 
approximately 8,000 feet to the east of 
Water Association Road. The third 
tract is identified as "future well field" 
on said maps and extends 
approximately 6,200 feet along the 
National Park Service boundary east of 
Water Association Road. The aquifer 
beneath the tracts serves as the sole 
source of drinking water for the 
communities of Avon, Buxton, Frisco, 
and Hatteras as well as the national 
seashore recreation area. The 

wetlands, swales, and surface waters 
adjacent to the well field provide a 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1284 



PROPOSED RULES 



m- 



large source of recharge and are a 
potential vehicle for contaminants. Due 
to these facts contamination of the 
water supply could have an adverse 
effect on people other than the local 
residents of Hatteras Island. 
Water-borne disease organisms could be 
easily transported to other areas of the 
state or the east coast by tourists who 
are attracted to the area daily. 

Elizabeth — Gity — WeH — Fiekk The 

Department of Environm ent; — Health, 
and Natural — Resources proposed the 
weH — field — at — Elizabeth — City — m 
Pasquotank — County — as — an — area — ef 
environmental concern. — The City of 
Elizabeth City is supplied with raw 
water from a shallow well field in the 
southeastern — section — ef- — the — Di s mal 
Swamp — at the end — of SR — 1-399 
approximately one half mile west of the 
corporate limits of Elizabeth City. — The 
well field begins at SR 1306 and 
extends west into the Dismal Swamp. 
The area to be designated is bounded to 
the south by the Southern Railway until 
it intersects SR 1 1 44 , to the cast by SR 
1306, 1309, and 1333, and to the north 
and west by the Dismal Swamp. — The 
well field consists of approximately 250 
well points piped by vacuum s ystem s 
which — deliver — the — water — te — s torage 
basins. The shallow wells deliver about 
two gpm each. — In addition, there arc 
few — deep — wells — m — the — field — with 
capacities — of about — 499 — gem — each. 
Total capacity ef- — the — field — is 



approximately 1.5 MGD. 
is the source of recharge. 



The swamp 



Statutory Authority G.S. 113A-107(a); 
113A-107(b); U3A-U3(b)(3)a.; 113A-124. 

iSotice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Wildlife Re- 
sources Commission intends to amend rule cited as 
15ANCAC 10B .0115. 

1 he proposed effective date of this action is 
February 1, 1995. 



1 he public hearing will be conducted at 10:00 
a.m. on November 30, 1994 at the Archdale 
Building, 3rd Floor Conference Room, 512 N. 
Salisbury Street, Raleigh, NC 27604-1188. 

iXeason for Proposed Action: To delete portions 
of Hyde County from provisions of prohibition 
against shining lights on deer. 

(comment Procedures: Interested persons may 
present their views either orally or in writing at 
the hearing. In addition, the record of hearing 
will be open for receipt of written comments from 
November 15, 1994 through December 15, 1994. 
Such written comments must be delivered or mailed 
to the N. C. Wildlife Resources Commission, 512 
Salisbury Street, Raleigh, NC 37604-1188. 

CHAPTER 10 - WILDLIFE RESOURCES 
AND WATER SAFETY 

SUBCHAPTER 10B -HUNTING 
AND TRAPPING 

SECTION .0100 -GENERAL 
REGULATIONS 

.0115 SHINING LIGHTS IN DEER 
AREAS 

(a) It having been found upon sufficient evi- 
dence that certain areas frequented by deer are 
subject to substantial unlawful night deer hunting, 
or that residents in such areas have been greatly 
inconvenienced by persons shining lights on deer, 
or both, the shining of lights on deer in such areas 
is limited by Paragraphs (b) and (c) of this Rule, 
subject to the exceptions contained in Paragraph 
(d) of this Rule. 

(b) No person shall, between the hours of 11:00 
p.m. and one-half hour before sunrise, intentional- 
ly shine a light upon a deer or intentionally sweep 
a light in search of deer in the indicated portions 
of the following counties: 

(1) Beaufort - entire county; 

(2) Bladen — entire county; 

(3) Brunswick — entire county; 

(4) Camden — entire county; 

(5) Chowan — entire county; 

(6) Currituck — entire county; 

(7) Duplin - entire county; 

(8) Franklin — entire county; 

(9) Gates — entire county; 
(10) Greene — entire county; 



1285 



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November 15, 1994 



9:16 



PROPOSED RULES 



Hertford — entire county; 

Hoke — entire county; 

Hyde — entire county, except that part 

of the county described in Paragraph (c) 

of this Rule; 

Jones — entire county; 

Lenoir — entire county; 

Martin — entire county; 

Nash — entire county; 

Pamlico — entire county; 

Pasquotank — entire county; 

Pender — entire county; 

Perquimans — entire county; 

Pitt — entire county; 

Richmond — entire county; 

Sampson — entire county; 

Tyrrell — entire county; 

Vance — entire county; 

Wake — entire county; 

Warren — entire county; 

Washington — entire county; 

Wayne — entire county. 

(c) No person shall, between the hours of 

one-half hour after sunset and one-half hour before 

sunrise, intentionally shine a light upon a deer or 

intentionally sweep a light in search of deer in the 



(ID 
(12) 
(13) 



(14) 
(15) 
(16) 
(17) 
(18) 
(19) 
(20) 
(21) 
(22) 
(23) 
(24) 
(25) 
(26) 
(27) 
(28) 
(29) 
(30) 



indica 


ted portions of the following counties: 


(1) 


Alamance — entire county; 


(2) 


Alexander — entire county; 


(3) 


Alleghany — entire county; 


(4) 


Anson — entire county; 


(5) 


Ashe — entire county; 


(6) 


Avery — that portion south and east of 




Highway 221; 


(7) 


Buncombe County — entire county; 


(8) 


Burke — entire county; 


(9) 


Cabarrus — entire county; 


(10) 


Caswell — entire county; 


(11) 


Catawba — entire county; 


(12) 


Chatham - entire county; 


(13) 


Clay — entire county; 


(14) 


Cleveland — entire county; 


(15) 


Cumberland — entire county; 


(16) 


Davidson — entire county; 


(17) 


Davie — entire county; 


(18) 


Durham — entire county; 


(19) 


Edgecombe — entire county; 


(20) 


Forsyth County — entire county; 


(21) 


Gaston — entire county; 


(22) 


Granville — entire county; 


(23) 


Guilford — entire county; 


(24) 


Halifax — entire county; 


(25) 


Harnett — entire county; 


(26) 


Henderson — entire county; 


£3 


i Hyde that part bounded on the north 



by a line running parallel with and 1000 
yards in a northward direction from that 
part of SR 130 4 that lead s from 
Hodges' Fork to Rose Bay, on the cast 
by the Mattamuskcct National Wildlife 
Refuge boundary, on the s outheast by 
US 26 4 , and on the we s t and southwest 
by a line running parallel with and 1000 
yards in a we s t or southwe s t direction 
from the ccntcrlinc of SR 130 4 ; 

(27) {2&)Iredell — entire county; 

(28) (39)Johnston — entire county; 

(29) (30)Lee — entire county; 

(30) (34)Lincoln — entire county; 

(31) (33)Macon — entire county; 

(32) {3-3)McDowell — entire county; 

(33) {34)Mecklenburg — entire county; 

(34) £35)Mitehell - entire county; 

(35) 06)Montgomery — entire county; 

(36) (374Northampton — entire county; 

(37) 08)Orange County — entire county; 

(38) {39)Person — entire county; 

(39) (4©)Polk - entire county; 

(40) {44} Randolph — entire county; 

(41) {42-) Robeson County — entire county; 

(42) (43)Rockingham — entire county; 

(43) (44) Rowan — entire county; 

(44) (45)Rutherford — entire county; 

(45) (46)Stanly — entire county; 

(46) (47-)Stokes — entire county; 

(47) {484Surry - entire county; 

(48) {49)Transylvania — entire county; 

(49) (5Q)Union — entire county; 

(50) (54) Watauga — entire county; 

(51) (52) Yancey — entire county. 

(d) Paragraphs (b) and (c) of this Rule shall not 
be construed to prevent: 

(1) the lawful hunting of raccoon or 
opossum during open season with 
artificial lights designed or commonly 
used in taking raccoon and opossum at 
night; 

(2) the necessary shining of lights by 
landholders on their own lands; 

(3) the shining of lights necessary to 
normal travel by motor vehicles on 
roads or highways; or 

(4) the use of lights by campers and others 
who are legitimately in such areas for 
other reasons and who are not 
attempting to attract or to immobilize 
deer by the use of lights. 

Statutory Authority G.S. 113-134; 113-291.1; S.L. 
1981, c. 410; S.L. 1981 (Second Session 1982), c. 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1286 



PROPOSED RULES 



1180. 



****************** 



fSotice is hereby given in accordance with G.S. 
150B-21.2 that the N.C. Department of Environ- 
ment, Health, and Natural Resources - Division of 
Solid Waste Management intends to adopt rules 
cited as 15 A NCAC 13B .1801 - .1812. 

1 he proposed effective date of this action is July 
1, 1995. 

1 he public hearings will be conducted at the 
following dates, times and locations: 

December 5, 1994 

10:00 a.m. 

Carol Belk Building 

(Allied Health Building) 

1st Floor Rm, 110 

Corner of Greenville Blvd. 

and Charles Blvd. 

Greenville, NC 

December 8, 1994 

7:00 p.m. 

First Floor Conference Room 

Interchange Building 

59 Wbodfin Place 

Asheville, NC 

December 9, 1994 

10:00 a.m. 

First Floor Conference Room 

Interchange Building 

59 Wbodfin Place 

Asheville, NC 



MXeason for Proposed Action: These rules are 
necessary to implement the provisions of G.S. 
1 30A-309. 04(e) and (f), G.S. 130A-309.09A(b)and 
G.S. 130A-294. The purpose of these rules is to 
enable local government compliance with the laws 
cited above, which requires local governments to 
submit comprehensive solid waste management 
plans to the Division of Solid Waste Management 
for approval. 

Additionally, these rules will require the submis- 
sion of waste reduction reports by operators of 
private permitted industrial landfills, require the 
operational compliance and submission of compli- 
ance reports by private permitted municipal solid 
waste facility operators, and require the operation- 
al compliance of municipal solid waste generators 
and haulers. 

Lsomment Procedures: Any person requiring 
information may contact Brad R. Rutledge, Divi- 
sion of Solid Waste Management, Solid Waste 
Section, Post Office Box 27687, Raleigh, NC 
27611-7687, Telephone (919) 733-0692. Written 
comments must be submitted to the above address 
no later than January 3, 1995. Notice of an oral 
presentation may be given to the above address at 
least 3 days prior to the public hearing. 

1 hese Rules affect the expenditures or revenues 
of local funds. A fiscal note was submitted to the 
Fiscal Research Division on October 6, 1994, 
OSBM on October 6, 1994, N.C. League of 
Municipalities on October 6, 1994, and N.C 
Association of County Commissioners on October 
6, 1994. 

CHAPTER 13 - SOLID WASTE 
MANAGEMENT 



December 12, 1994 

10:00 a.m. 
Ground Floor Hearing Room 

Archdale Building 

512 North Salisbury Street 

Raleigh, NC 

December 12, 1994 

7:00 p.m. 
Ground Floor Hearing Room 

Archdale Building 

512 North Salisbury Street 

Raleigh, NC 



SUBCHAPTER 13B - SOLID 
WASTE MANAGEMENT 

SECTION .1800 - REQUIREMENTS FOR 
LOCAL GOVERNMENT COMPREHENSIVE 

SOLID WASTE MANAGEMENT PLANS, 

AND THE OPERATIONAL COMPLIANCE 

OF MUNICD7AL SOLID WASTE 

GENERATORS AND HAULERS, 

OPERATORS OF PERMITTED 

MUNICD7AL SOLID WASTE FACDLnTES, 
AND OPERATORS OF PRTVATE 

PERMITTED INDUSTRIAL LANDFDLLS 



1287 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



PROPOSED RULES 



.1801 PURPOSE, SCOPE AND 
APPLICABILITY 

(a) Purpose. The purpose of this Section is to 
implement provisions of the North Carolina Solid 
Waste Management Act pertaining to management 
and planning for the reduction of nonhazardous 
solid waste. In addition to establishing require- 
ments for local government planning, this Section 
establishes requirements for solid waste manage- 
ment generators and haulers, operators of permit- 
ted municipal solid waste facilities and operators of 
private permitted industrial landfills. 

(b) Scope. This Section establishes the criteria 
by. which the Division will approve comprehensive 
solid waste management plans submitted by units 
of local government in accordance with G.S. 
130A-309.04(e) and (fj and OS, 130A- 
309.09A(b). This Section will also establish 
reporting, information and operation requirements 
for municipal solid waste haulers, operators of 
permitted municipal solid waste facilities, 
operators of private permitted industrial landfills, 
information and operation requirements for 
municipal solid waste generators in accordance 
with G.S. 130A-294(a) and {bj and GJL 130A- 
309. 09D. 

(c) Applicability. The requirements of this 
Section apply to units of local government, 
municipal solid waste generators and haulers, 
operators of permitted municipal solid waste 
management facilities and operators of private 
permitted industrial facilities in North Carolina. 

Statutory Authority G.S. 130A-294; 130A-309.04; 
130A-309.09A; 130A-309.29. 

.1802 DEFINITIONS 

The definitions in 15A NCAC 13B .0101 and the 
definitions in G.S. 1 30A-290 shall apply through- 
out this Section unless a term is defined differently 
in this Rule, in which case the definition given in 
this Rule shall apply. Additional definitions 
appear in the specific rules to which they apply. 

(1) "Baseline year" means the year beginning 
July L 1991 and ending June 30, 1992, 
or an earlier year approved by the Divi- 
sion consistent with the requirements of 
G.S. 130A-309.04(c2). 

(2) "Compliance report" means the report to 
be submitted to the Division annually by 
permitted municipal solid waste facilities 
in accordance with G.S. 130A- 
309.09D(b). 

(3) "Comprehensive solid waste management 
plan," or, within the context of this 



Section, "plan, 
to cover a 



means the plan designed 
10 year period for 



management and reduction of solid waste 
which is prepared by a unit or units of 
local government pursuant to G.S. 130A- 
309.09A(b) and 130A-309.04(e) and in 
accordance with the Rules .1803 and 
.1804 of this Section. 
(4) "Lead agency" means the unit of local 
government responsible for the develop- 
ment of a comprehensive solid waste 
management plan on behalf of a planning 
unit, and for forming an advisory com- 
mittee for the planning unit. 
'Local contact" means the chief adminis- 



£5} 



161 



ill 
£81 



121 



(10) 



1LU 



trative official of a lead agency or his or 
her designee, who acts as liaison between 
the advisory committee, the Division and 
the planning unit. 

"Planning Unit" means a local govern- 
ment or aggregate of local governments 
that agree to cooperate in the develop- 
ment and implementation of a compre- 
hensive solid waste management plan in 
accordance with the requirements of this 
Section. A regional solid waste manage- 
ment authority may serve as a planning 
unit for purposes of this Section. 
"Regional planning unit" means a plan- 
ning unit that consists of at least two 
counties. 

"Regional solid waste management au- 
thority" means an organization of local 
governments that have authority pursuant 
to G.S. 153A, Article 22, to manage 
solid waste on a regional basis. 
"Solid waste planning unit advisory 
committee" means the committee estab- 
lished by a planning unit in accordance 
with Paragraph (fl of Ru]e .1803 of this 
Section to advise the planning unit on the 
development and implementation of a 
comprehensive solid waste management 
plan. 

"Unit of local government" means, with- 
in the context of this Section, a county, 
incorporated municipality or regional 
solid waste management authority. 
"Waste management and reduction re- 
port" means the report prepared by the 
owner or operator of a private permitted 
industrial disposal facility pursuant to 
Rule .1810 of this Section. 



Statutory Authority G.S. 130A-294; 130A-309.29. 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1288 



PROPOSED RULES 



.1803 REQUIREMENTS OF LOCAL 
GOVERNMENT 

(a) County planning responsibility. Each county 
shall develop, submit and implement a 
comprehensive solid waste management plan in 
cooperation with the incorporated municipalities 
within its borders or with any other units of local 
government within the State in accordance with 
G.S. 130A-309.04(e) and G.S. 130A-309.09A(b) 
and the requirements of this Section. Each county 
has responsibility for forming a planning unit. 
Each county shall contact and shall document its 
contact of each incorporated municipality jn that 
county for the purpose of determining which 
intend to participate with the county as a planning 
unit. If in the course of forming the planning unit, 
the county delegates lead agency responsibility to 
another unit of local government, the 
documentation of contacts of the incorporated 
municipalities within the county shall be made 
available to the lead agency for inclusion in the 
"Notice of Intent to Plan" document described in 
Paragraph (g) of this Rule. Each county shall 
consider and investigate to the extent practicable 
and economically feasible, the possibility of 
forming or joining with a regional planning unit 
and shall document the investigation and 
conclusions for inclusion in the format of the plan 
as described in Part (b)(6)(F) of Rule .1804 of this 
Section. 

(b) Municipal planning responsibility. A 
municipality that is participating in a county's 
comprehensive solid waste management plan may, 
with the approval of the county, assume 
responsibility for preparation and submittal of 
planning documents and assume the responsibilities 
of lead agency as described in this Section. Any 
incorporated municipality that does not participate 
in a county comprehensive solid waste 
management plan or in a comprehensive solid 
waste management plan with any other unit of 
local government shall prepare its own in 
accordance with G.S. 130A-309.04(f) and this 
Section. Each incorporated municipality shall 
consider and investigate to the extent practicable 
and economically feasible, the possibility of 
forming or joining with a regional planning unit. 

(c) Regional solid waste management authority 
responsibility. A regional solid waste management 
authority may constitute a planning unit if that unit 
is composed exclusively of the authority's member 
governments. Such a regional solid waste 
management authority planning unit may satisfy 
the requirements of this Section by use of the 
powers granted the authority in its charter for the 



£21 



£3} 



direction of solid waste management. However, 
units of local government within a planning unit 
that consists of a regional solid waste management 
authority and any unit of local government that is 
not a member of the authority shall not be 
considered a regional solid waste management 
authority planning unit for purposes of this Section 
and may not use powers granted to the authority to 
satisfy the requirements of this Section. 

(d) Lead agency. 

(1) Each county shall assume lead agency 
status in accordance with the 
requirements of this Section, however. 
a county may delegate lead agency 
authority to an incorporated 
municipality in that county if that 
municipality agrees by memorandum of 
understanding with the county to 
assume lead agency responsibilities. 
Where two or more counties wish to 
form, the lead agency shall be 
determined by a memorandum of 
understanding between the counties. 
Where two or more incorporated 
municipalities wish to form a planning 
unit, the lead agency shall be 
determined by a memorandum of 
understanding between the 
municipalities. 

Where units of local government wish 
to form a regional planning unit 
consisting of both counties and 
municipalities, lead agency status shall 
be determined by memorandum of 
understanding between all the 
participating units of local government. 
Where a regional solid waste 
management authority has formed a 
planning unit exclusively of its member 
governments, the authority shall act as 
its own lead agency. 

(e) Local contact. The chief administrative 
official of the unit of local government that acts as 
lead agency shall perform or designate a person to 
perform the functions of the local contact. The 
functions of the local contact are as follows: 

(1) Jo act as liaison between the advisory 
committee, the planning unit and the 
Division; 

(2) To submit correspondence and 
documents required by_ this Section to 
the Division on behalf of the planning 
unit; and 

(3) To supervise the drafting and 
development of the comprehensive solid 



£4} 



£5} 



1289 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



PROPOSED RULES 



waste management plan on behalf of the 
planning unit. 
(f) Solid waste planning unit advisory committee 
composition. 

(1) The chief administrative officer for the 
lead agency of the planning unit shall 
serve as chair or name the person to 
serve as chair of the solid waste 
planning advisory committee. 

(2) The chief administrative officer for 
each unit of local government 
participating in a planning unit shall 
name a representative to that solid 
waste planning unit advisory committee 
in accordance with Part (f)(4)(A) of this 
Paragraph by submitting that name to 
the chief administrative officer for the 
lead agency of the planning unit. 

(3) The chief administrative officer for the 
lead agency of the planning unit shall 
name persons to serve on the solid 
waste planning unit advisory committee 
in accordance with Part (f)(4)(B) of this 
Paragraph. 

(4) At a minimum, each solid waste 
planning unit advisory committee shall 
include: 

(A) A representative chosen by the chief 
administrative officer of each unit of 
local government participating in the 
plan; and 

(B) A representative chosen by the chief 
administrative officer of the lead 



(iii) 
fjv) 



15) A 



agency for the planning unit from 
each of the following categories: 

Business or industry ; 

Civic or community organization ; 

Environmental or conservation 

organization ; and 

Private solid waste management 

enterprise- 
unit of local 



government that is 



16) 



participating in a comprehensive solid 
waste management plan with one or 
more other local governments may 
choose to be represented on the solid 
waste planning unit advisory committee 
by designating a representative of 
another participating unit of local 
government. provided that this 
designation be submitted in writing to 
the Division and signed by the chief 
administrative official for the 
designating unit of local government. 
Where no representative from the 



planning unit is available to fil] one or 

more minimum category requirements 

in accordance with Subparagraph (4) of 

this Paragraph, the planning unit shall 

submit an alternative list of solid waste 

planning unit advisory committee 

nominees and their qualifications to the 

Division for approval . 

(g) Notice of Intent to Plan. Each local 

government or group of local governments 

intending to submit a comprehensive solid waste 

management plan shall submit a Notice of Intent to 

Plan to the Division by October i, 1995. The 

Notice of Intent to Plan document shall be 

submitted to the Division by the local contact of 

the planning unit and signed by the chief 

administrative official for each unit of local 

government that intends to be part of the planning 

unit and shall include: 

(1) Identification of each unit of local 
government participating in the 



of the lead £3} 



development of the planning unit's 
comprehensive solid waste management 
plan; 
(2) A statement that names each 
incorporated municipality within each 
county participating in the planning unit 
and that indicates that each was 
contacted for the purpose of 
determining whether that incorporated 
municipality would join the planning 
unit; 

If the submitting entity is a regional 
solid waste management authority, a 
statement that names each unit of local 
government participating in the 
planning unit formed by the authority 
and indicates that each has been notified 
that the authority is developing a 
comprehensive solid waste management 
plan; 

(4) Identification of the local contact for 
the planning unit; 

(5) The name of each member of the solid 
waste planning unit advisory committee 
and demonstration of compliance with 
Subparagraph (f)(4) of this Rule; 

(6) A statement acknowledging that each 
signatory understands that if a unit of 
local government withdraws from a 
planning unit, the withdrawing unit of 
local government must submit its own 
comprehensive solid waste management 
plan in accordance with the 
requirements of this Section; and 



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1290 



PROPOSED RULES 



£7] A description of a public participation 

strategy for the planning unit that 

includes public meetings and public 

hearings. 

(h) Plan progress report. The planning unit 

shall submit a plan progress report to the Division 

by January j_, 1996. The plan progress report 

shall include: 

(1) An updated list of the solid waste 
planning unit advisory committee 
members and their compliance with 
Subparagraph (f)(4) of this Rule; 

(2) A description of activities taken to date 
by the planning unit for the 
development of the plan; 

(3) A schedule, including completion dates, 
for future steps in the plan development 
process; and 

(4) An update of the planning unit's public 
participation strategy, including a 
statement that the plan progress report 
is available for public review and that 
timely public notice of its availability 
has been issued. 

(i) Draft plan submittal. 

(1) Each planning unit shall submit by July 
lj 1996, a draft plan, in triplicate, to 
the Division's local regional solid waste 
section office for Division approval . 
Where the geographic area of the 
planning unit is located within the 
boundaries of more than one regional 
office, the Division shall determine 
which regional solid office shall have 
responsibility for review of the draft 
plan. 

(2) The draft plan for each planning unit 
shall be submitted under a cover letter 
signed by. the chief administrative 
officer of the lead agency identifying 
the participating units of local 
government 

(j) Public review of draft plan. 

(1) Each county shall make available for 
public review a copy of the draft plan 
for the planning unit in which that 
county is participating. 

(2) Where the lead agency for a planning 
unit is a municipality, a copy of the 
draft plan for that planning unit shall be 
kept and made available for public 
review at a location deemed appropriate 
by that municipality. 

(3) Each unit of local government that is 
required by this Paragraph to make a 



copy of the draft plan available for 
public review shall publish notice of the 
location of the draft plan in a local 
newspaper. 

Statutory Authority G.S. 130A-294; 130A-309.04; 
130A-309.09A; 130A-309.29. 

.1804 DRAFT PLAN FORMAT 

(a) Comprehensive solid waste management 
plans shall be prefaced by an executive summary 
and note the source of al] statistical data. 

(b) Part I of each plan shall be entitled 
"Background Information" and shall contain: 



12} 



13} 



(1) The name of each unit of local 
government participating in the 
planning unit. 

A brief description of the geography of 
the area within the planning unit. 
A brief description of the current solid 
waste management staff within the 
planning unit. 

(4) A brief description of the population 
distribution for the current year in both 
incorporated and unincorporated areas 
of the planning unit, including 
significant seasonal fluctuations if 
applicable. 

(5) Identification of the advisory committee 
members, including which part of the 
community or which unit of local 
government each member represents, in 
accordance with Subparagraph (f)(4) of 
Rule .1803 of this Section. 

(6) A description of the planning process, 
including the following: 

(A) Identification of the person(s) 
responsible for drafting the plan; 

(B) The date and time each advisory 
committee meeting was held; 

(C) The date, time and location of public 
hearings; 

(D) Any actions taken by the planning 
unit as a result of the public hearings; 

(E) The method by which the public was 
given notice of and the opportunity to 
review a copy of the draft plan; 

(F) A brief description of the 
consideration given to using a 
regional planning approach and the 
development of comprehensive 
regional solid waste management 
plan. 

(c) Part II of each plan shall be entitled "Waste 
Disposal, Composition and Projections" and shall 



1291 



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November 15, 1994 



9:16 



PROPOSED RULES 



include the following information: 

The tonnage of residential, of non- 



Lh 



residential, and of construction and 
demolition waste disposed for the 
current fiscal year. 

(2) The percentage of the total waste 
disposed represented by each of the 
waste streams listed in Subparagraph 
d) of this Paragraph. 

(3) An estimate of the tonnages for the 
individual materials composing 
residential waste. State the percentage 
represented by each of these materials 
of the total residential waste disposed. 
At a minimum, the list of materials 
shall be equivalent to those established 
in the State solid waste management 
plan. 

(4) An estimate of the individual materials 
composing non-residential waste. The 
estimate shall be based on one of the 



following: 
(A) A list of solid waste 
materials and 



tons 



generators, 
of materials of 



IB) 



non-residential waste that account for 
a minimum of 50 percent of non- 
residential waste disposed; or 
The results of a local waste 
composition study that identifies 
specific non-residential materials 
which at a minimum compose at least 
50 percent of the non-residential 
waste stream and determines the 
tonnages disposed of each of those 
materials. 
£5} The baseline year from which the 

planning unit is calculating the waste 

reduction goal. 

The baseline year population and 



£6) 

ill 

m 



m 



disposal tonnage for the planning unit. 
The current year population and 
disposal tonnage for the planning unit- 
Projected population and projected 
disposal tonnage for the state's waste 
reduction goal year (Fiscal Year 2000- 
01). Projected disposal tonnage shall be 
calculated by multiplying the baseline 
per capita disposal rate by the projected 
population for the goal year. 
The projected population and projected 
disposal tonnage for the 10th year of 
the plan. Projected disposal tonnage 
shall be calculated by multiplying the 
baseline per capita disposal rate by the 
projected population for the 10th year. 



(10) The current year per capita disposal 
rate for the planning unit, which shall 
be derived by dividing the current 
disposal tonnage by the current 
population. 

(11) The goal year target per capita disposal 
rate for the plannin g unit, which shall 
be derived by multiplying the baseline 
year per capita number by Jj for 60 
percent) . 

(12) The target disposal tonnage for the goal 
year that shows a 40 percent reduction 
in the total waste stream. The target 
disposal tonnage shall be calculated by 
multiplying the projected population for 
the goal year by the target per capita 
disposal rate. 

(13) The tonnage that must be reduced to 
meet the goal by Fiscal Year 2000-01, 
which shall be calculated by subtractin g 
the target disposal tonnage from the 
projected disposal tonnage for the goal 
year. 

(d) Part III of each plan shall be entitled 
"Description and Assessment of the Current Solid 
Waste Management Program . " Part HI shall 
consist of 18 sections. 

(1) Section "A" shall be entitled "Disposal 
and Transfer of Solid Waste" and shall 
contain: 

(A) A description of the planning unit's 
current arrangements for disposal and 
transfer of solid waste. The 
description shall address, if 
applicable, types of disposal facilities 
and areas of service, permitted 
capacity and anticipated life of each 
disposal facility, tipping fees; 
transportation and destination of 
wastes and materials that are banned 
or restricted from landfill disposal. 

(B) A description of solid waste disposal 
and transfer operations that occur 
within the planning unit, but that are 
not managed by the local governments 
within the planning unit. The 
description shall address, if 
a pplicable, the type of disposal 
facility and area of that facility's 
service, the permitted capacity and 
anticipated life of each transfer and 
disposal facility, the tipping fees at 
each facility, the method of 
transportation and destination of 
wastes from each transfer station, and 



9:16 



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November 15, 1994 



1292 



PROPOSED RULES 



1Q 



ID) 



12] 



IA1 



the handling and disposal of restricted 
materials. 

An assessment of the plamiing unit's 
current arrangements for disposal and 
transfer of solid waste. The 

assessment shall include an evaluation 
of the suitability and cost- 
effectiveness of existing contracts, 
options for altc native arrangements 
and identification of needs. 
An assessment of the current 
arrangements for disposal and transfer 
of solid waste that are not managed 
by local governments within the 
planning unit, but which affect, or 
have the potential to affect, solid 
waste management planning by the 
planning unit. 
Section "B" shall be entitled "Collection 
of Solid Waste" and shall contain: 
A description of the current public 
and private waste collection system(s) 
in the planning unit, whether or not 
under contract by the local 
government. These shall include: 
Residential, non-residential and 
construction and demolition waste 
streams collected: 



Hi 



(ii) Identification of the entities or 

enterprises that collect the wastes; 
(iii) Tonnage for each waste stream 

collected; 
(iv) Disposal destination for each 

waste stream; 
(v) Tonnage delivered to each 

destination by each entity that 

collects waste; 

A description of the arrangements 

and methods for collection of 



Ml 



wastes 



(vii) Any 



and 
ordinances 



or other 



mechanisms for local government 
to franchise solid waste 
management facilities. 
(B) An assessment of the current waste 
collection system(s) in the planning 
unit. The assessment shall include an 
evaluation of the suitability and cost- 
effectiveness of existing contracts or 
agreements, options for alternative 
arrangements, and an identification of 
needs. 
(3) Section "C" shall be entitled "Source 
Reduction" and shall contain: 



including policies, ordinances and 
programs by or in cooperation with 
the planning unit to encourage source 
reduction; and 
£B] An assessment of current source 
reduction efforts by or in cooperation 
with the planning unit. The 

assessment shall include an evaluation 
of the suitability and cost- 
effectiveness of existing contracts or 
agreements, options for alternative 
arrangements, and an identification of 
needs. 
(4) Section "D" shall be entitled 
"Recycling" and shall contain: 

(A) A description of current efforts, 
including marketing efforts, policies, 
ordinances, and programs by or in 
cooperation with the planning unit to 
recycle residential materials. 

(B) A chart that, for each residential 
waste material identified in the 
residential waste section of Part II of 
this plan includes: 

The tons of each residential waste 
material disposed by the planning 
unit in the current year, and the 
sum total of these tonnages; 
The tons of each residential waste 
material recycled by the planning 
unit in the current year, and the 
sum total of these tonnages; 
Tons of each residential waste 
material managed, which shall be 
derived by adding tons disposed 
to tons recycled; 

The percentage of each material 
recycled. The percentage of each 
material recycled shall be derived 
by dividing the tons recycled by 
the tons managed; and 
The identification of processors or 
markets available to the planning 
unit for the handling of residential 
recyclable materials. 

(C) A description of current efforts, 
including marketing efforts, policies, 
ordinances and programs by or in 
cooperation with the planning unit for 
recycling non-residential materials. 
An assessment of the current 



(i) The tons of 



(ii) The tons of 



M 



lY) 



ID) 



recycling efforts by or in cooperation 
with the planning unit. The 

assessment shall include: 



(A) A description of current efforts. 



ii) An evaluation of the suitability 



1293 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



PROPOSED RULES 



and cost-effectiveness of existing 
contracts or agreements, options 
for alternative arrangements and 
identification of needs; 

(ii) The identification of potential 
recycling processors or markets 
for currently unmarketed 
materials; and 

(iii) The identification of materials for 
which currently there are no 
processors or markets. 
Section "E" shall be entitled "Reuse" 



15} 



(A) 



and shall co ntain 
A 



description of 
including policies. 



current efforts. 



ordinances and 



programs by. or in cooperation with 
the planning unit for encouraging 
reuse of materials that would 
otherwise be discarded. 
(B) An assessment of current efforts by or 
in cooperation with the planning unit 
for reuse of materials that would 
otherwise be discarded. The 
assessment shall include an evaluation 
of the suitability and cost- 
effectiveness of existing contracts or 
agreements, options for alternative 
arrangements and an identification of 
needs. 
(6) Section "F" shall be entitled 
"Composting or Mulching" and shall 
contain: 

(A) A description of current efforts, 
including marketing efforts, policies, 
ordinances and programs by or in 
cooperation with the planning unit to 
compost organic materials and mulch 
yard wastes. 

(B) An assessment of current efforts by or 
in cooperation with the planning unit 
to compost organic materials or mulch 
yard waste. The assessment shall 
include an evaluation of the suitability 
and cost-effectiveness of existing 
contracts or agreements; an estimation 
of the amounts of waste being 
composted or mulched; options for 
alternative arrangements and an 
identification of needs. 

Section 



ill 



ICT shall be 

Community Education" and 



entitled 

_ _ shall 

contain: 
(A) A description of current efforts, 
including policies and programs by or 
in cooperation with the planning unit 



ill 



to educate the community or 
communities within the planning unit 
about reducing, recycling, reusing, 
composting, mulching and disposing 
solid waste materials. 
An assessment of current efforts by or 
in cooperation with the planning unit 
to educate the community or 
communities within the planning unit 
about reducing, recycling, reusing, 
composting, mulching and disposing 
solid waste. 

The assessment shall include 
arrangements, if any, with public or 
private entities, options for alternative 
arrangements, and identification of 
needs. 

Section "H" shall be entitled "School 

Education" and shall contain: 
A description of current efforts, 
including policies and programs by or 
in cooperation with the planning unit, 
about reducing, recycling, reusing, 
composting, mulching and disposing 
solid waste that target school systems 
within the planning unit. 
An assessment of current efforts by or 
in cooperation with the planning unit 
about reducing, recycling, reusing, 
composting, mulching and disposing 
waste that target school systems 
within the planning unit. The 



I§1 



IA) 



im 



assessment shall 



nclude 



arrangements, if any, with public or 
private entities, options for alternative 
ar rangements and identification of 
needs. 
(9) Section "1" shall be entitled "Special 
Wastes: Tires" and shall contain: 

(A) A description of current efforts, 
including marketing efforts, 
ordinances, policies and programs by 
or in cooperation with the planning 
unit for collection, recycling or reuse 
of scrap tires, the production of tire- 
derived fuel, or other management of 
scrap tires and of current programs or 
arrangements for addressing nuisance 
scrap tire site problems; and 

(B) An assessment of current programs 
efforts by or in cooperation with the 
planning unit for collection, recycling 
or reuse of scrap tires, the production 
of tire-derived fuel or other 
management of scrap tires. The 



9:16 



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November 15, 1994 



1294 



PROPOSED RULES 



assessment shall include an estimation 
of the amount of scrap tires managed, 
options for alternative arrangements 
and an identification of needs. 

(10) Section "J" shall be entitled "Special 
Wastes: White Goods" and shall 
contain: 

(A) A description of current efforts, 
including m rketing efforts, 
ordinances, policies and programs by 
or in cooperation with the planning 
unit for collection, recycling, reuse or 
other management of white goods; 
and 

(B) An assessment of current programs or 
arrangements by or in cooperation 
with the planning unit for collection, 
recycling, reuse, or other management 
of white goods. The assessment shall 
include an estimation of the amount of 
white goods managed, options for 
alternative arrangements and an 
identification of needs. 

(11) Section "K" shall be entitled "Special 
Wastes : Lead-Acid Batteries " and shall 
contain: 

(A) A description of current efforts, 
including marketing efforts. 



ordinances, policies and programs by 
or in cooperation with the planning 
unit, for collection, recycling, reuse 
or other management of lead-acid 
batteries; and 
(B) An assessment of current efforts by or 
in cooperation with the planning unit 
for collection, recycling, reuse or 
other management of lead-acid 
batteries. The assessment shall 
include an estimation of the amount of 
lead-acid batteries managed, options 
for alternative arrangements and an 
identification of needs. 
(12) Section "L" shall be entitled "Special 
Wastes : Used Oil" and shall contain: 

(A) A description of current efforts, 
including marketing efforts, 
ordinances, policies and programs by 
or in cooperation with the planning 
unit for collection, recycling or other 
management of used oil; and 

(B) An assessment of current efforts by or 
in cooperation with the planning unit 
for collection, recycling or other 
management of used oil. The 
assessment shall include an estimation 



(13) 



(A} 



of the amount of used oil managed- 
options for alternative arrangements 
and an identification of needs. 
Section "M" shall be entitled "Special 
Wastes : Household Hazardous Waste" 
and shall contain: 
A description of 
including ordinances 



(14) 



£A} 



(15) 



£A) 



(16) 



current efforts, 
policies and 



im 



m 



IB] 



LM 



programs by or in cooperation with 
the planning unit for reduction T 
collection, recycling, reuse, reduction 
of toxicity and other management of 
household hazardous waste; and 
An assessment of current efforts by or 
in cooperation with the planning unit 
for collection, recycling, reuse or 
other management of household 
hazardous waste. The assessment 
shall include an estimation of the 
amount of household hazardous waste 
managed, options for alternative 
arrangements and an identification of 
needs. 
Section "N" shall be entitled "Illegal 
Disposal Prevention" and shall contain: 
A description of illegal disposal 
problems within the planning unit and 
of current efforts, including 
ordinances, policies and programs by 
or in cooperation with the planning 
unit for preventing illegal disposal; 
and 

An assessment of current efforts by or 
in cooperation with the planning unit 
for addressing the prevention of 
illegal disposal, options for alternative 
arrangements and an identification of 
needs. 
Section "O" shall be entitled "Litter 
Management" and shall contain: 
A description of the litter problem 
within the planning unit and of 
current efforts, including ordinances, 
policies and programs by or in 
cooperation with the planning unit for 
management of litter; and 
An assessment of current programs or 
arrangements by or in cooperation 
with the planning unit for 
management of litter, options for 
alternative arrangements and an 
identification of needs. 
Section "P" shall be entitled "Recycled 
Product Procurement" and shall contain: 
A description of current efforts, 



1295 



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9:16 



PROPOSED RULES 



m. 



(IT) 



including ordinances, policies by or in 

cooperation with the planning unit 

that encourage public or private 

entities to buy products made with 

recycled and recyclable materials; and 

An assessment of current efforts by or 

in cooperation with the planning unit 

that encourage procurement of 

products made with recycled and 

recyclable materials and an 

identification of needs. 

Section "Q" shall be entitled "Summary 

of Waste Management Programs" and 

shall contain a checklist of waste 

within 



management programs 



the 



(18) 



planning unit and which waste streams 
are targeted by these programs- 
Section "R" shall be entitled "Current 
Solid Waste Financing" and shall 
contain: 

(A) A statement of the current individual 
solid waste budgets of each local 
government in the planning unit; 

(B) The percentage of each solid waste 
budget that is derived from ti pping 
fees, general fund or property tax, 
household charges, volume or weight- 
based fees, sale of recyclables, grants, 
diversion credit, tax reimbursements, 
and other a pplicable funding sources; 
and 

(C) An assessment of current financing 
methods and an identification of 
options and needs. 

(e) Part IV of the plan shall be entitled "Future 
Solid Waste Management Program" and shall 
include: 

(1) An introductory paragraph explaining 
the planning unit's method of 
addressing the State's hierarchy of solid 
waste management methods established 
in GJL 130A-309.04(a). This 
explanation shall discuss: 

(A) Factors, including environmental, 
which were considered as part of the 
decision-making process in choosing 
various methods; and 

(B) Why the methods chosen work in the 
best interests of the citizens 
represented by the local governments 
participating in the planning unit. 

(2) This Section shall address components 
described in Subparagraphs (d)(1) 
through (16) of this Rule (Sections "A" 
through "P" of Part IITL including 



needs identified by the assessments of 
each, and shall contain: 

(A) A description and a brief explanation 
of the purpose(s) for new programs or 
improvements to existing programs 
for each component; 

(B) An identification of waste streams 
addressed by the new or improved 
programs; and 

(C) With regard to Subparagraphs (d)(1) 
and (2) of this Rule (sections "A" and 
"B" of Part HI of the plan), a 10 year 
projection of how disposal, collection 
and transfer of solid waste is to be 
managed within the planning unit. 

(3) A section shall be entitled "Summary of 
Future Solid Waste Management 
Programs" and shall contain a checklist 
of the planning unit's future solid waste 
management program and an 
identification of which waste streams 
are targeted by the programs. 

(4) A section shall be entitled "Future Solid 
Waste Financing" and shall contain 
options for financing planned or 
proposed new programs or program 
improvements. 

(f) Part V of the plan shall be entitled 
"Implementation" and shall provide a schedule for 
implementing programs described in 
Subparagraphs (d)(1) through (16) of this Rule 
(sections "A" through "P" of Part HI). This 
section shall include: 

(1) Specific actions that will be taken or 
programs that will be implemented in 
the current year and the following two 
years of the planning period; 

(2) Actions or programs that are planned 
for the remaining eight years of the 10 
year period of the plan; and 

(3) Cost projections for each proposed 
program . 

(g) Part VI of the plan shall be entitled "Meeting 
the Goal " and shall include: 

(1) For the residential waste stream: 

(A) The projected amount, in tons, of 
residential waste reduction for Fiscal 
Year 2000-01; and the percent this 
amount represents of the total 
projected waste disposal for Fiscal 
Year 2000-01 that was established by. 
the calculation method provided in 
Subparagraph (c)(8) of this Rule. 

(B) Methods of reduction, and for each 
method: 



9:16 



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November 15, 1994 



1296 



PROPOSED RULES 



ill 



£i) Targeted materials; 
(ii) Expected reduction in tons; and 
(iii) The percent of the total projected 
waste disposal for Fiscal Year 
2000-01 that the method is 
expected to achieve. 
For the non-residential waste stream: 

amount, in tons, of 
for 



(A) 



The projected 
non-residential 



waste reduction 



(!) 



iii 

lii) 

(iii) 



£3} For the 



£A] 



IS) 



£4] 



(51 



Fiscal Year 2000-01; and the percent 
this amount represents of the total 
projected waste disposal for Fiscal 
Year 2000-01 that was established by 
the calculation method provided in 
Subparagraph (c)(8) of this Rule. 
Methods of reduction, and for each 
method: 

Targeted materials; 
Expected reduction m tons; and 
The percent of the projected waste 
disposal for Fiscal Year 2000-01 
that the method is expected to 
achieve. 
For the construction and demolition 
stream : 
The projected amount, in tons, of 
construction and demolition waste 
reduction for Fiscal Year 2000-01; 
and the percent this amount represents 
of the projected waste disposal for 
Fiscal Year 2000-01 that was 
established by the calculation method 
provided in Subparagraph (c)(8) of 
this Rule- 
Methods of reduction, and for each 
method: 

Targeted materials; 
Expected reduction in tons; and 
The percent of the projected waste 
disposal for Fiscal Year 2000-01 
that the method is expected to 
achieve. 
The total tonnage to be diverted from 
disposal in order to meet the 40 percent 
State waste reduction goal in Fiscal 
Year 2000-01, based on the amounts 
projected in the information required by 
Subparagraphs (g)(1), (2) and (3) of this 
Paragraph. 

Approximate waste reduction in tons 
per year, stating baseline year, current 
year and each year through Fiscal Year 
2000-01. 



m 

iiii) 



130A-309.09A; 130A-309.29. 



.1805 



Statutory Authority G.S. 130A-294, 130A-309.04; 



REVIEW, REVISION AND 
TENTATIVE APPROVAL OF 
LOCAL GOVERNMENT PLANS 

(a) The Division shall review all draft plans for 
compliance with the requirements of this Section. 

(b) A draft plan that is tentatively approved by 
the Divisionis eligible for adoption by the 
submitting planning unit. 

(c) A draft plan that does not meet the 
requirements of this Section will be returned with 
written comments concerning the deficiencies. 
The plan must be revised and resubmitted to the 
division within the time period provided hi the 
written comments. The time allowed for 
resubmittance may not exceed 90 days . 

(d) Every local government in a planning unit 
that submits a revised plan that fails to meet the 
requirements of this Section is considered out of 
compliance with this Section. A planning unit that 
has submitted a revised plan that fails to receive 
Division approval shall continue to revise and 
resubmit its plan until the Division approves that 
plan. 

Statutory Authority G.S. 130A-294; 130A-309.04; 
130A-309.09A; 130A-309.29. 

.1806 ADOPTION AND FINAL 
APPROVAL OF LOCAL 
GOVERNMENT PLANS 

(a) Plan adoption. Prior to receiving final 
approval by the Division, each unit of local 
government within the planning unit must adopt by 
formal resolution the plan submitted by that 
planning unit. If, within 60 days of receiving 
pre-approval from the Division, each unit of local 
government that has not taken the necessary action 
to adopt the plan will be considered as having not 
submitted by the plan required by G.S. 130A- 
309.04(e) and G.S. 130A-309.09A(b). A regional 
solid waste management authority that has formed 
a planning unit exclusively of its member 
governments may adopt the plan on behalf of its 
member units of local government without 
obtaining formal resolutions from each member. 

(b) Two copies of the adopted plan for each 
planning unit shall be sent to the Division within 
30 days of its formal adoption by the participating 
units of local government. Certified copies of the 
formal resolutions of adoption by each 
participating unit of local government shall be 
included in the a ppendices of each final copy of 
the adopted plan to be sent to the Division. 



1297 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



PROPOSED RULES 



(c) The Division renders final a pproval of a plan 
upon receipt of a formal resolution of adoption of 
the pre-approved plan from every unit of local 
government in the planning unit. 

Statutory Authority G.S. 130A-294; 130A-309.04; 
130A-309.09A; 130A-309.29. 

.1807 PLAN UPDATE 

(a) Each planning unit shall submit an update of 
its plan to the Division by July 1_, 1998 and every 
even numbered year thereafter for Division 
approval. 

(b) The plan update shall include: 

(1) Changes in population and population 
projections; 

(2) Changes in waste stream compositions 
that affect reduction programs, strategy 
or projections; 

(3) Changes in waste stream generators that 
affect reduction programs, strategy or 
projections; 

(4) Changes in waste stream generation that 
affect reduction programs, strategy or 
projections; 

Changes in waste reduction 
calculations; 

Changes in use of solid waste disposal 
facilities; 
Additions or deletions of current or 



{5J 
£6) 

m 
m 



12} 



HO) 



OH 



(12) 



(13) 



(14) 



(15) 



(16) 



planned programs; 

Specific actions or programs to be 

implemented over the next two years of 

the plan; 

Major obstacles to the implementation 

of the comprehensive solid waste 

management program; 

Changes in scheduling of planned 

comprehensive solid waste management 

programs; 

Changes in expected waste reduction by 

residential. non-residential. and 

construction and demolition streams; 



An updated list of the advisory 
committee membership; 
The addition or withdrawal of local 
governments to or from a planning unit; 
Updated projections for waste disposed 
in the current year, goal year, fifth year 
and 10th year of the plan, along with 
the data to support those projections; 
Updated projections on the anticipated 
life of the landfill(s) receiving waste 
from the planning unit; 
An evaluation of progress toward 



achievement of the goals and policies of 
the programs proposed in the existing 
plan; 

(17) A discussion of the effect the update 
will have on the existing plan: 

(18) Information required by new state 
statutes or rules adopted since the 
original plan was a pproved; and 

(19) A description of the public participation 
in the development of the plan update, 
including a description of how the 
advisory committee was used. 

Statutory Authority G.S. 130A-294; 130A-309.04; 
130A-309.09A; 130A-309.29. 

.1808 REQUIREMENTS OF MUNICIPAL 
SOLID WASTE GENERATORS 
AND HAULERS 

(a) Generators and transporters that dispose or 
cause to be disposed solid waste outside the 
planning unit where it was generated, shall do so 
in a manner consistent with the comprehensive 
solid waste management plan of the planning unit 
where the waste was generated. 

(b) Non-residential municipal solid waste 
generators shall provide the following information 
to the local contact for the planning unit of the 
generator's location upon request by the local 
contact for use in development of the unit's 
comprehensive solid waste management plan: 

(1) A list of disposal facilities used by the 
generators; 

(2) An estimate of solid waste materials to 
be disposed at the disposal facilities; 
and 

(3) Approximate tonnages of each solid 
waste material bound for disposal. 

(c) Municipal solid waste haulers shall provide 
the following information to the local contact(s) for 
the planning unit(s) that hauler serves upon request 
by the local contact for use in the development of 
comprehensive solid waste management plans: 

(1) Disposal facilities used by the haulers 
for solid waste generated within the 
planning unit; 

(2) An estimate of what solid waste 
materials generated within the planning 
unit are to be transported to the 
disposal facilities; and 

(3) Approximate tonnages, according to 
waste stream, of solid waste materials 
generated within the planning unit to be 
transported for disposal. 

(d) Municipal solid waste haulers shall provide 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1298 



PROPOSED RULES 



the following information to the Division by 
August L, 1996 and by every August 1 thereafter, 
covering the period from July _1 to June 30 of each 
year: 

(1) Disposal facilities used by the haulers 
for solid waste generated within the 
planning unit; 

(2) An estimate of what solid waste 
materials generated within the planing 
unit are to be transported for disposal at 
the disposal facilities; and 

(3) Approximate tonnages, according to 
waste stream, of solid waste materials 
generated within the planning unit to be 
transported for disposal. 

(e) Haulers that transport the following materials 
exclusively shall be exempt from the reporting 
requirements of this Rule: 

(1) Tires; and 

(2) Regulated medical waste . 

Statutory Authority G.S. 130A-294; 130A-309.29. 

.1809 REQUIREMENTS FOR OPERATORS 
OF PERMITTED MUNICIPAL SOLID 
WASTE MANAGEMENT FACDLITTES 

(a) Operators of permitted municipal solid waste 
facilities, excluding privately owned industrial 
landfills and land clearing and inert debris landfills 
shall operate in a manner consistent with the 
approved comprehensive solid waste management 
plans for each planning unit from which they 
receive waste. 

(b) Permitted municipal solid waste management 
facilities shall provide the following information 
upon request to the local contact for each of the 
planning units of the areas they serve for use ]n 
the development of comprehensive solid waste 
management plans: 

(1) A description of any processing 
treatment applied to waste by the 
facility; and 

(2) The anticipated operational life or 
remaining capacity in tons of that 
facility. 

(c) Operators of public permitted municipal solid 
waste management facilities that receive waste 
from more than one planning unit and operators of 
private permitted municipal solid waste 
management facilities, excluding private permitted 
industrial landfills and land clearing and inert 
debris landfills, shall submit compliance reports by 
August Jj 1996 and by every August I thereafter 
to the Division and to local governments being 
served by the facilities demonstrating that they are 



operating consistent with the comprehensive solid 
waste management plans of the planning units they 
serve. These compliance reports shall: 

(1) List the planning areafs) in North 
Carolina from which the facility 
received solid waste during the 
concluding fiscal year; 
£2} For each solid waste stream handled at 
the facility, state how the solid waste is 
being managed consistent with the 
approved comprehensive solid waste 
management plans applicable to the 
solid waste handled by that facility; and 
£3) These reports shall be reviewed for 
approval by the Division. 

(d) Facilities subject to Paragraph (b) of this 
Rule that do not receive approval on compliance 
reports submitted to the Division shall revise 
compliance practices to meet the requirements of 
this Section. 

(e) The operator of a permitted municipal solid 
waste management facility that services an area 
that does not have an a pproved plan is not required 
to submit a compliance report for that service area. 

Statutory Authority G. S. 130A-294; 130A-309. 09D; 
130A-309.29. 

.1810 REQUIREMENTS FOR OPERATORS 
OF PRIVATE PERMITTED 
INDUSTRIAL LANDFILLS 

(a) A private industry owning and operating its 
own permitted disposal facility for its own waste 
shall develop and implement waste management 
methods to be applied for a K) year period and 
which are designed to meet the state goal for waste 
reduction and hierarchy of management. 

(b) A private industry owning and operating its 
own permitted disposal facility exclusively for its 
own waste shall submit a waste management and 
reduction report by July J_, 1996 for approval by 
the Division. 

(c) The waste reduction and management report 
submitted to the Division by a private permitted 
industrial disposal facility shall include: 

(1) Name of facility; 

(2) Permit number and permit expiration 
date; 

(3) Annual tonnages or volume of waste(s) 
by material received at the facility and 
projected tonnages or volume for each 
of the following 10 years; 

(4) Expected number of years of capacity 
of the facility at current disposal rates; 



(5) Description of waste materials managed 



1299 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



PROPOSED RULES 



or disposed at the facility; 

(6) Waste reduction options for waste(s) 
received or generated; 

(7) Management methods that will be 
applied to waste(s) received over a 10 
year period and dates for 
implementation of each method 
designed to meet the state goal for 
waste reduction and hierarchy of solid 
waste management; 

(8) The industrial facility's proposal for a 
method of tracking waste reduction that 
incorporates production rates within its 
operation. Waste disposed per 
employee is an approved method for 
tracking waste reduction; and 

(9) A description of the facility's 
compliance with 15A NCAC 13B 
.0103(i). which requires all active 
sanitary landfills be equipped with 
liners, final cover systems and leachate 
collection systems by January J_i 1998. 

(d) The waste reduction and management report 
shall be updated and submitted to the Division for 
approval every two years beginning July 1_, 1998. 

Statutory Authority G.S. 130A-294; 130A-309.09D; 
130A-309.29. 

.1811 REPORT RECORDS 

Semi-annual reports of activities describing plan 
implementation shall be prepared by each planning 
unit and by each private permitted industrial 
disposal facility and made available for inspection 
by. Division personnel. Reports kept by planning 
units shall be kept at the chief administrative office 
of the lead agency for each planning unit or at the 
office of the local contact for the planning unit. 
Reports kept by a private permitted industrial 
disposal facility shall be kept at that facility- 
Alternative locations for report record maintenance 
must be approved by the Division. 

Statutory Authority G.S. 130A-294; 130A-309.04; 
130A-309.09A; 130A-309.29. 



(b) Local governments shall be responsible for 
enforcing the provisions of the a pproved compre- 
hensive solid waste management plans of their 
respective planning units when violations occur 
within their jurisdictions. 

(c) The Division may consider a petition for a 
municipal solid waste to be excluded from the 
calculation of waste to be reduced if the petitioner 
demonstrates to the Division's satisfaction that 
waste managed or generated by the petitioner is a 
result of one or more of the following efforts to 
reduce a public health or environmental hazard: 

(P A superfund or other state or federal 
directed clean-up; 

Disposal resulting from a natural disas- 
ter declared by federal or state govern- 
ment; 

Asbestos disposal; 
Lead-based product disposal; and 
Other waste disposal categories deemed 
appropriate by the Division. 



121 



01 

141 

(5) 



Statutory Authority G.S. 130A-294; 130A-309.04; 
130A-309.09A; 130A-309.29. 

TITLE 19A - DEPARTMENT OF 
TRANSPORTATION 

Notice is hereby given in accordance with G.S. 
150B-21.2 that the North Carolina Department of 
Transportation intends to adopt rules cited as 19 A 
NCAC 02E. 1001 - .1009. 

1 he proposed effective date of this action is 
March 1, 1995. 

Instructions on How to Demand a Public Hearing 
(must be requested in writing within 15 days of 
notice): A demand for a public hearing must be 
made in writing and mailed to Emily Lee, N. C 
DOT, P.O. Box 25201, Raleigh, NC 27611. The 
demand must be received within 15 days of this 
Notice. 



.1812 COMPLIANCE 

(a) Compliance with the requirements of this 
Section by local government; municipal solid waste 
generators and haulers; operators of permitted 
municipal solid waste facilities; and operators of 
private permitted industrial landfills shall be 
measured by reports required by this Section, by 
inspections and by other means available to the 
Division. 



ixeason for Proposed Action: The N. C General 
Assembly recognized the Scenic Byways Program 
in 1993 and directed N. C. DOT to adopt rules to 
manage the program. The proposed rules clearly 
define the processes for designation and removal of 
scenic byways within our present highway system. 

Ksomment Procedures: Any interested person may 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1300 



PROPOSED RULES 



submit written comments on the proposed rules by 
mailing the comments to Emily Lee, N. C. DOT, 
P.O. Box 25201, Raleigh, NC, 27611, within 30 
days after the proposed rules are published or until 
the date of any public hearing held on the pro- 
posed rules, whichever is longer. 

CHAPTER 2 - DIVISION OF HIGHWAYS 

SUBCHAPTER 2E - MISCELLANEOUS 
OPERATIONS 

SECTION .1000 - SCENIC BYWAYS 

.1001 DEFINITIONS 

This Section establishes the Department's rules 
for the administration, designation and removal of 
the North Carolina Scenic Byways Program, For 
purposes of this Section, the following definitions 
shall apply: 

(1) "Board" means North Carolina Board of 
Transportation; 

(2) "Byway" means a scenic highway; 

(3) "Designate" means a process for approv- 
ing a road or a system of roads to the 
state system of Scenic Byways; 

(4) "D.O.H." means Division of Highways 
of the Department of Transportation; 

(5) "Merit" means applications with all facts 
substantiated and considered suitable for 
further consideration; 

(6) "N.C.DO.T./Department" means North 
Carolina Department of Transportation; 

(7) "Program" means the Scenic Byways 
Program and its associated administrative 
tasks; 

(8) "Promote" means to foster and encourage 
the advancement of the Scenic Byways 
Program; 

(9) "Removal" means the process of remov- 
ing a Byway or a section of a byway 
from the state system of Scenic Byways; 

(10) "Report" means a summary of informa- 
tion prepared by the Roadside Environ- 
mental Unit; 

(11) "Roadside Environmental Unit" means a 
unit of the Department of Transportation; 

(12) "Scenic Byway/Highway " means a de- 
fined road or system of roads, designated 
by the Board of Transportation, having 
distinct natural, cultural, historical, and 
aesthetic qualities; 

(13) "Scenic Byway/Highway Management 
Plan" means strategic goals specifically 
outlined to preserve or enhance the scenic 



integrity along a state highway or state 
byway; 

(14) "Scenic Value" means a measurement of 
the aesthetic quality of an area 
determined through a visual inventory 
conducted by the Roadside Environmental 
Unit; and 

(15) "T.I. P." means the Transportation 
Improvement Program. 

Statutory Authority G.S. 136-18(5); 136-122 
through 125; 136-129.2; 143B-348. 

.1002 PURPOSE 

(a) The Scenic Byway/Highway system shall be 
established to provide the public with the 
opportunity to travel on a system of roads 
featuring the aesthetic and cultural qualities of the 
State within the existing highway system. 

(b) The Scenic By way /Hi ghway program is 
intended to identify not create scenic 
byways/highways. 

(c) The program and rules prescribed to preserve 
the byways and to sustain the integrity and safety 
of the scenic byway/highway system shall be 
incorporated into N.C.DO.T. planning and 
maintenance operations. 

(d) All lawfully erected outdoor advertising signs 
adjacent to a Scenic Byway/Highway designated as 
a part of the interstate or federal-aid primary 
highway system as of June 1_, 1991. or any 
highway which is or becomes a part of the 
National Highway System shall become 
nonconforming signs and shall be allowed to 
remain until such time as funds become available 
for purchase. 

(e) The implementation of the system provides an 
alternative for safe travel, encourages tourism and 
economic growth, and promotes the scenic, 
cultural, recreational, and historic attributes along 
the highway system. 

Statutory Authority G.S. 136-18(5); 136-122 
through 136-125; 136-129.2; 143B-348. 

.1003 ADMINISTRATION OF PROGRAM 

(a) The responsibilities and execution of duties 
of implementing and carrying out the goals of the 
Scenic Byway/Highway program are vested in the 
Division of Highways (DOH) of the NCDOT. 
The DOH is authorized: 

(1) to plan, design, and develop the Scenic 
Byway/Highway System and Program; 

(2) to develop and make recommendations, 
including routes to be designated or 



1301 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



PROPOSED RULES 



removed. 



to the Board of 



£3} 



Transportation on the organization and 
operation of the Scenic Byway/Highway 
Program; 

to su pport the protection of historical, 
cultural, natural and aesthetic resources 
in areas adjacent to the highway. 
(b) Other administrative duties which shall be 
conducted by the Department are: 

(1) to compose and provide application 
forms for proposed Scenic 
Byway/Highway locations and for 
removal of Scenic Byway/Highway 
locations from the system; 
to coordinate and manage Scenic 



£2) 
£3} 



Byway/Highway system signing; 
to annually review and file a re port by 
February 1 each year with the Secretary 
of Transportation on the existing Scenic 
Byways/Highways in the system and 
those highways offered for both 
designation and removal in the system; 

(4) to oversee interaction between the 
Department of Transportation and 
public/private entities interested in the 
development or management of the 
State Byway/Highway system; 

(5) to develop and make available to the 
public interpretive information about 
the Scenic Byways and Highways. 

Statutory Authority G.S. 136-18(5); 136-122 
through 136-125; 136-129.2; 143B-348. 

.1004 DESIGNATION CRITERIA 

(a) The following criteria shall be required for 
a route to be included in the Scenic 
Byway/Highway system: 

(1) highway design which preserves and 
protects the natural beauty or scenery 
of the area; 

(2) location on an existing highway or 
roadway having legal public access; 

(3) minimum consecutive length of one 
mile; 

(4) adequate land area to accommodate safe 
enjoyment of scenic attractions; 

(5) evidence of strong local support for the 
designation established by the 
proponent of the designation, which 
includes but is not limited to petitions, 
letters, and newspaper articles; 

(6) significant natural or aesthetic features 
visible from and adjacent to the 
roadway. Such features include but are 



m 



fM 



not limited to agricultural lands, vistas 
of marshes, shorelines, forests, and 
other areas of dense vegetation or 
notable geographic characteristics; 
intrinsic resources such as historical, 
cultural, or recreational resources in the 
area. 

NCDOT 



The NCDOT shall determine that 
development of the designated area shall not 
detract from the scenic natural character and visual 
quality of the route. The Department shall ensure 
the route is compatible with recreational, aesthetic, 
and environmental management needs of the area. 

(c) Designation of a highway as a Scenic 
Byway /Highway shall not significantly interfere 
with the operation or maintenance of existing 
public utility lines and facilities. 

(d) Designation of a highway as a Scenic 
Byway/Highway shall not be construed to require 
any modification in local land use regulations or 
restrictions, require any change in commercial or 
agricultural activities, or affect future highway 
rehabilitation, development, or the need to 
maintain or improve the roads. 

(e) Preference shall be given to a Scenic 
Byway/Highway with existing protected areas such 
as national forests or federal or state park land 
near or adjacent to the proposed route. 

Statutory Authority G.S. 136-18(5); 136-122 
through 136-125; 136-129.2; 143B-348. 

.1005 DESIGNATION PROCESS 

The process for designation as a Scenic Byway 
shall be as follows: 

(1) A non-profit organization, which includes 
but shall not be limited to a county 
commission or the governing body of any 
municipality, may submit an application 
to the Roadside Environmental Unit of 
the Department of Transportation with 
proper Scenic By way/ Highway 
identification on the envelope; 

(2) Roadside Environmental Unit shall 
review the application and prepare a 
written report, which includes findings on 
the designation criteria set in 19A NCAC 
02E .1004 and a recommendation on 
whether the proposal should be adopted 
or rejected; 

(3) Proposed routes deemed to have merit 
based on criteria in 19A NCAC 02E 
.1004 shall be submitted by the DOH 
staff to the Board of Transportation for 
a pproval or denial; 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1302 



PROPOSED RULES 



14) 



15} 



16} 



01 



At the request of any interested party, a 
public hearing shall be held to consider 
any proposal recommended for a pproval. 
All interested parties shall be given the 
opportunity to provide comments and 
submit evidence in support or in 
opposition to the designation at the 
hearing; 

If a hearing is requested a legal notice 
shall be placed in at least one newspaper 
in the municipality nearest the proposed 
Scenic Byway/Highway and in three 
successive issues. The notice shall 
contain the date, time, and location of the 
hearing and a summary of the proposed 
designation. Proponents of the 

Byway/Highway shall be responsible for 
the cost of the legal notice. In addition 
to the hearing, written comments shall be 
accepted by the Roadside Environmental 
Unit for 30 days from the publication of 
the hearing notice. In lieu of a hearing, 
written comments may be submitted and 
shall be accepted for 90 days from the 
date of application. A request for public 
hearing shall be made within 60 days 
from the receipt of the application. The 
hearing shall be held no sooner than 14 
days following the last day of the legal 
notice and no later than 30 days 



following the last day of the legal notice; 
The Department shall notify the 
proponent in writing of the Board of 
Transportation's approval or denial of the 
proposal; 

The Board may designate any route or 
section of a route at anytime so long as 
the Board meets the criteria in 19A 
NCAC 02E .1004. 



Statutory Authority G.S. 136-18(5); 136-122 
through 136-125; 136-129.2; 143B-348. 

.1006 APPLICATION FOR DESIGNATION 

(a) The following items shall be included for a 
Scenic Byway application, but is not limited to 
such items, to be considered: 

(1) The proponent's name, address, 
telephone number, and name, address, 
and telephone number of the 
organization represented if applicable; 

(2) A written description of the section of 
highway to be designated including 
historical, cultural, natural or aesthetic 
significance; 



£3} Photographic slides of the area 
indicating historical, cultural, natural, 
or aesthetic significance; 

(4) County maps with proposed route 
marked clearly; 

(5) Copies of zoning ordinances applicable 
to the route or a written list of existing 
land-use areas for unzoned areas; 

(6) Documentation of notice given to local 
governments adjacent to proposed 
route; 

(7) For unzoned areas, a written list of 
commercial or industrial activities 
adjacent to or within 800 feet of the 
pavement of the proposed route; and 

(8) An optional Scenic Byway Management 
Plan may be submitted with an 
application. 

(b) All applications shall be received by the 
Roadside Environmental Unit, N.C. DOT, PO Box 
2520, Raleigh, NC 27611, no later than August 31 
of each year. Incomplete applications shall not be 
accepted and will be returned to the proponent. 

(c) Application and all a pplication materials 
shall become the property of the North Carolina 
Department of Transportation. 

Statutory Authority G.S. 136-18(5); 136-122 
through 136-125; 136-129.2; 143B-348. 

.1007 REMOVAL PROCESS 

(a") A route or section of a route may be 
removed if its character has changed such that it 
meets the criteria for removal as specified in G.S. 
136-18(31) and taking into consideration that it no 
longer meets the criteria as set out in 19A NCAC 
02E .1004. 

(b) The process of removal shall be as follows: 

(1) A non-profit organization, which 
includes but shall not be limited to a 
county commission or the governing 
body of any municipality, may submit 
an application for removal to the 
Roadside Environmental Unit of the 
Department of Transportation with 
proper Scenic Byway/Highway 
identification label on the envelope; 

(2) The Roadside Environmental Unit shall 
review application, prepare a report 
incorporating a study of the scenic 
value of the submitted route or section 
of route and submit proposals deemed 
to have merit as specified in 19A 
NCAC 02E .1004 to the Board of 
Transportation; 



1303 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



PROPOSED RULES 



13} 



Ml 



IS 
161 



At the request of any interested party, 
a public hearing shall be held to 
consider any proposal recommended for 
removal. All interested parties shall be 
given the opportunity to provide 
comments and submit evidence in 
support or in opposition to the removal 
at the hearing; 

If a hearing is requested a legal notice 
shall be placed in at least one 
newspaper in the municipality nearest 
the route or section of a route proposed 
for removal and in three successive 
issues. The notice shall contain the 
date, time, and location of the hearing 
and a summary of the removal 
proposal. Proponents of the removal 
shall be responsible for the cost of the 
legal notice. In addition to the hearing, 
written comments shall be accepted by 
the Roadside Environmental Unit for 30 
days from the publication of the hearing 
notice. In lieu of a hearing, written 
comments may be submitted and shall 
be accepted for 90 days from the date 
of application. A request for public 
hearing shall be made within 60 days 
from the receipt of the application. The 
hearing shall be held no sooner than 14 
days following the last day of the legal 
notice and no later than 30 days 
following the last day of the legal 
notice; 

The Board of Transportation shall 
approve or deny application; and 
The Department shall notify 



the 

applicant of a pproval or denial. 
(c) The Board may remove any route or section 
of a route from the Scenic Byway System at 
anytime so long as the Board meets the criteria 
outlined in 19A NCAC 02E .1004(a). 

Statutory Authority G.S. 136-18(5); 136-122 
through 136-125; 136-129.2; 143B-348. 

1008 REMOVAL APPLICATION 

(a) The following shall be included in a Scenic 
Byway removal application, but is not limited to 
such items, to be considered. 

(1) Characteristic which has changed such 
that it no longer meets criteria for 
designation; 

(2) Documentation of current zoning, 
ordinances, and other land-use controls; 

(3) Documentation of public notification of 



Ml 



removal to relative parties and legal 

notice of public notification; 

Written route or section of route de- 



scription, including elements supporting 
the proposal to remove: 

(5) Written applicant information including 
name, address, and telephone number; 

(6) Photographic slides of characteristics 
supporting proposal to remove; 

(7) County maps with route or section of 
route marked. 

(b) Application must be received by the Road- 
side Environmental Unit, N.C.D.O.T., P.O. Box 
25201, Raleigh, NC 27611 at least six months 
prior to the annual Board meeting set aside for 
Scenic Byway review. Incomplete applications 
shall not be accepted and will be returned to the 
proponent. 

(c) All applications and application materials 
shall become property of the North Carolina 
Department of Transportation. 

Statutory Authority G.S. 136-18(5); 136-122 
through 136-125; 136-129.2; 143B-348. 

.1009 BOARD OF TRANSPORTATION 
EVALUATION 

(a) The Board of Transportation shall annually 
evaluate the Scenic Byway/Highway Program at its 
March meeting. 

(b) The review and evaluation shall include, but 
not be limited to. the following: 

(1) An examination of funding for the 
program; 

(2) A determination of suitability of those 
proposed routes for designation and 
removal. A request for further infor- 
mation on the proposed route may be 
made by the Board. The suitability of 
the route shall be decided at a later 
date. 

(c) The annual meeting date, place, and time 
shall be determined by the Board of Transportation 
and shall be consistent within each calendar year 



and with the annual Transportation Improvement 
Program (TIP) public hearings. 

(d) The Board of Transportation retains the 
authority to designate or remove a route or a 
section of a route from the Scenic Byway/Highway 
system at any time. Prior to making its decision, 
the DOH shall prepare a recommendation to the 
Board. 

Statutory Authority G.S. 136-18(5); 136-122 
through 136-125; 136-129.2; 143B-348. 



NORTH CAROLINA REGISTER 



November 15, 1994 



1304 



PROPOSED RULES 



TITLE 23 - DEPARTMENT OF 
COMMUNITY COLLEGES 

Notice is hereby given in accordance with G.S. 
150B-21.2 that NC Department of Community 
Colleges intends to adopt rule cited as 23 NCAC 
2E .0604. 

1 he proposed effective date of this action is 
February 1, 1995. 

1 he public hearing will be conducted at 10:30 
a.m. on December 15, 1994 at Room 179 - 
Caswell Bldg., 200 W. Jones St., Raleigh, NC 
27603-1379. 

IXeason for Proposed Action: Pursuant to Chap- 
ter 769, Part 18, Sec. 18, of the 1993-94 Session 
Laws, the General Assembly has required the State 
Board of Community Colleges to develop a region- 
al approach for program approval for new pro- 
grams offered by the community colleges. 

K^omment Procedures: Interested persons may 
present statements either orally or in writing at the 
public hearing; or by mail on or before December 
15, 1994, addressed to: Ms. Elizabeth Jones, 
Department of Community Colleges, 200 W. Jones 
Street, Raleigh, NC 27603-1379. 

tLditor's Note: This Rule was filed as a tempo- 
rary adoption effective October 31, 1994 for a 
period of 180 days or until the permanent rule 
becomes effective, whichever is sooner. 

CHAPTER 2 - COMMUNITY COLLEGES 

SUBCHAPTER 2E - EDUCATIONAL 
PROGRAMS 

SECTION .0600 - VOCATIONAL 
CURRICULUM 

.0604 CONSORTIUM 

(a) Two or more colleges may enter into a 
written consortium agreement to expand approved 
technical and vocational curriculums to other 
colleges. The consortium agreement shall: 

(1) Specify the curriculum program(s) to be 
shared; 



(2) Define the plan for sharing the curricu- 
lum program(s'); 

(3) Certify that appropriate and adequate 
resources are available at each partici- 
pating college; 

(4) Certify that the curriculum programfsl 
meets the standards of the appropriate 
accrediting agency; 

(5) Be signed by the president and 
approved by the board of trustees of 
each participating college; and 

(6) Be approved by the System President, 
fb) Any technical or vocational curriculum 

shared by a consortium shall be approved by the 
State Board to be offered by one or more of the 
colleges participating in the consortium. The 
college offering the consortium program shall earn 
the FTE and grant the award. 

Statutory Authority G.S. 115D-5; S.L. 1993, 2nd 
session, c. 769, p. 18, s. 18. 



1305 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 







LIST OF RULES CODIFIED 


1 he List of Rules Codified is a listing of rules that were filed with OAH in the month indicated. 


K.ey: 








Citation 


= Title, Chapter, Subchapter and Rule(s) 




AD 


= Adopt 




AM 


= Amend 




RP 


= Repeal 




With Chgs 


= Final text differs from proposed text 




Corr 


= Typographical errors or changes that requires no rulemaking 




Eff Date 


= Date rule becomes effective 




Temp. Expires 


= Rule was filed as a temporary rule and expires on this date or 180 days 






NORTH CAROLINA ADMINISTRATIVE CODE 






OCTOBER 94 


TITLE 


DEPARTMENT TITLE DEPARTMENT 


2 


Agriculture 


1 7 Revenue 


4 


Commerce 


18 Secretary of State 


5 


Correction 


21 Occupational Licensing Boards 


10 


Human Resources 34 - Mortuary Science 



50 - Plumbing and Heating Contractors 
62 - Sanitarian Examiners 



Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


2 NCAC 48C .0008 














EXPIRED 


4 NCAC 2T .0103 


/ 






/ 




11/01/94 




5 NCAC 2B .0101 






/ 






11/15/94 


180 DAYS 


.0106 






/ 






11/15/94 


180 DAYS 


.0108 






/ 






11/15/94 


180 DAYS 


.0109- .0114 


/ 










11/15/94 


180 DAYS 


10 NCAC 10 .0001 


/ 










11/01/94 




.0002 


/ 






/ 




11/01/94 




.0003 - .0005 


/ 










11/01/94 




35F .0306 




/ 








11/01/94 




41F .0706 


/ 










11/01/94 




.0812 


/ 










11/01/94 







9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1306 



LIST OF RULES CODIFIED 










Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


EfF. 
Date 


Temp. 
Expires 


10 NCAC 43L .0201 




/ 








11/01/94 




45H .0202 




/ 








11/01/94 




50B .0311 




/ 




/ 




11/01/94 




.0403 




/ 




/ 




11/01/94 




11 NCAC 15 .0001 - .0002 




/ 




/ 




11/01/94 




.0004 - .0005 




/ 




/ 




11/01/94 




.0008 - .0010 




/ 




/ 




11/01/94 




.0012 




/ 




/ 




11/01/94 




13 NCAC 7F .0101 










/ 






.0101 




/ 








11/01/94 




15A NCAC 2D .1301 - .1302 




/ 




/ 




11/01/94 




.1304 




/ 




/ 




11/01/94 




2H .0901 - .0902 




/ 








11/01/94 




.0903 - .0904 




/ 




/ 




11/01/94 




.0905 - .0906 




/ 








11/01/94 




.0907 - .0908 




/ 




/ 




11/01/94 




.0909 - .0910 




/ 








11/01/94 




.0912 




/ 








11/01/94 




.0914 - .0915 




/ 








11/01/94 




.0916 - .0917 




/ 




/ 




11/01/94 




.0918 - .0921 


/ 










11/01/94 




2L .0202 




/ 




/ 




11/01/94 




5B .0013 


/ 










11/01/94 




12K .0101 - .0111 


/ 










11/01/94 


180 DAYS 


17 NCAC 1C .0503 - .0504 




/ 








11/01/94 




.0506 - .0507 




/ 








11/01/94 




.0509 




/ 








11/01/94 




6B .0104 




/ 








11/01/94 




.0107 




/ 








11/01/94 




.0116 




/ 








11/01/94 




.0118 




/ 








11/01/94 




.0606 




/ 








11/01/94 




.3521 




/ 








11/01/94 






1307 NORTH CAROLINj 


i REGI 


STER 




fl 


Jovembe 


r 15, 1994 


9:16 



LIST OF RULES CODIFIED 










Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


17 NCAC 6C .0110 




/ 








11/01/94 




7B .3911 




/ 








11/01/94 




18 NCAC 8 .0101 




/ 








11/01/94 




.0102 




/ 




/ 




11/01/94 




.0103 - .0104 




• 








11/01/94 




.0105 


/ 






/ 




11/01/94 




.0201 - .0209 






/ 






11/01/94 




.0402 




/ 




/ 




11/01/94 




.0501 




/ 








11/01/94 




.0601 




/ 




/ 




11/01/94 




.0602 




/ 








11/01/94 




.0603 




/ 




/ 




11/01/94 




.0701 




/ 




/ 




11/01/94 




.0801 




/ 








11/01/94 




.0803 




/ 








11/01/94 




.0903 




/ 




/ 




11/01/94 




.1002 - .1003 




/ 




/ 




11/01/94 




.1101 




/ 








11/01/94 




.1209 




/ 




/ 




11/01/94 




21 NCAC 34A .0126 




/ 








11/01/94 




34B .0108 






/ 






11/01/94 




.0125 






/ 






11/01/94 




.0212 


/ 










11/01/94 




.0308 




/ 








11/01/94 




.0401 




/ 








11/01/94 




.0405 




/ 








11/01/94 




.0509 






/ 






11/01/94 




.0609 






/ 






11/01/94 




34D .0303 




/ 








11/01/94 




50 .0407 - .0408 




/ 








11/01/94 




.0412 




/ 




/ 




11/01/94 




.1102 




/ 








11/01/94 




.1104 




/ 








11/01/94 





9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1308 





LIST OF RULES CODIFIED 










Citation 


AD 


AM 


RP 


With 
Chgs 


Corr 


Eff. 
Date 


Temp. 
Expires 


21 


NCAC 62 .0103 - .0104 




/ 








11/01/94 




.0201 - .0204 




/ 




/ 




11/01/94 




.0205 




/ 








11/01/94 




.0208 




/ 




/ 




11/01/94 




.0301 - .0302 




/ 




/ 




11/01/94 




.0305 




/ 








11/01/94 




.0306 




/ 




/ 




11/01/94 




.0307 - .0308 




/ 








11/01/94 




.0310 




/ 








11/01/94 




.0314 




/ 




/ 




11/01/94 




.0315 - .0317 




/ 








11/01/94 




.0319 




/ 








11/01/94 




.0402 - .0403 




/ 




/ 




11/01/94 




.0405 




/ 




/ 




11/01/94 




.0407 - .0408 




/ 








11/01/94 




.0411 




/ 








11/01/94 




.0412 






/ 






11/01/94 




.0414 


/ 










11/01/94 





1309 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



RRC OBJECTIONS 



J he Rules Review Commission (RRC) objected to the following rules in accordance with G.S. 
150B-21.9(a). State agencies are required to respond to RRC as provided in G.S. 150B-21. 12(a). 



RRC Objection 09/15/94 
Obj. Removed 10/20/94 



COMMERCE 

Alcoholic Beverage Control Commission 

4 NCAC 2T.0103 - Beer Franchise Law; "Brand" Defined 
Agency Revised Rule 

ENVIRONMENT, HEALTH, AND NATURAL RESOURCES 

Environmental Management 

15 A NCAC 2H .0907 - Program Approval Procedures: Revision and Withdrawal RRC Objection 10/20/94 
Agency Revised Rule Obj. Removed 10/20/94 

15 A NCAC 2H .0908 - Reporting/Record Keeping Reqfor POTWS /Industrial Users RRC Objection 10/20/94 
Agency Revised Rule 

15A NCAC 2H .0916 - Permits 
Agency Revised Rule 



Obj. Removed 10/20/94 
RRC Objection 10/20/94 
Obj. Removed 10/20/94 



Mining: Mineral Resources 

15A NCAC 5B .0013 - Response Deadline to Department's Request(s) 
Rule Returned to Agency 
Agency Filed Rule for Codification Over RRC Objection 

Wildlife Resources and Water Safety 

15A NCAC 101 .0001 - Definitions and Procedures 
Rule Returned to Agency 
Agency Filed Rule for Codification Over RRC Objection 

HUMAN RESOURCES 

Departmental Rules 

10 NCAC lO .0002 - Complaints 
Agency Revised Rule 

Medical Assistance 

10 NCAC SOB .0403 - Reserve 
Agency Revised Rule 

INSURANCE 

Medical Database Commission 

11 NCAC 15 .0002 - Definitions 
Agency Revised Rule 



RRC Objection 09/15/94 

Obj. Contd 10/20/94 

Eff. 11/01/94 



RRC Objection 08/18/94 

Obj. Contd 09/15/94 

Eff. 10/01/94 



RRC Objection 10/20/94 
Obj. Removed 10/20/94 



RRC Objection 10/20/94 
Obj. Removed 10/20/94 



RRC Objection 10/20/94 
Obj. Removed 10/20/94 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1310 



RRC OBJECTIONS 



11 NCAC 15 .0004 - Uniform Billing Form 

Agency Revised Rule 
11 NCAC 15 .0005 - Description of Data to be Submitted 

Agency Revised Rule 
11 NCAC 15 .0006 - Data Submission 

Agency Revised Rule 
11 NCAC 15 .0007 - Provider Verification 

Agency Revised Rule 
11 NCAC 15 .0008 - Compliance; Penalties for Noncompliance 

Agency Revised Rule 
11 NCAC 15 .0009 - Data Accessibility 

Agency Revised Rule 

LICENSING BOARDS AND COMMISSIONS 
Board of Mortuary Science 

21 NCAC 34B .0108 - Trainee Pocket Certificate 

Agency Repealed Rule 
21 NCAC 34B .0125 - Mortuary Science Student Permit Card 

Agency Repealed Rule 
21 NCAC 34B .0509 - Courtesy Card Form 

Agency Repealed Rule 
21 NCAC 34B .0609 - Funeral Establishment Permit Form 

Agency Repealed Rule 

Board of Examiners of Plumbing, Heating and Fire Sprinkler Contractors 

21 NCAC 50 .1102 - License Fees 
Agency Revised Rule 

Board of Sanitarian Examiners 

21 NCAC 62 .0201 - Petitions 

Agency Revised Rule 
21 NCAC 62 .0203 - Hearings 

Agency Revised Rule 

REVENUE 

Individual Income Tax Division 

17 NCAC 6B .01 18 - Electronic Filing of Individual Income Tax Returns 

Agency Revised Rule 

SECRETARY OF STATE 

Land Records Management Division 

18 NCAC 8 .0101 - Purpose 

Agency Revised Rule 
18 NCAC 8 .0105 - Definitions of Terms 

Agency Revised Rule 
18 NCAC 8 .0402 - Qualifications 

Agency Revised Rule 



RRC Objection 


10/20/94 


Obj. Removed 


10/20/94 


RRC Objection 


10/20/94 


Obj. Removed 


10/20/94 


RRC Objection 


10/20/94 


Obj. Cont'd 


10/20/94 


RRC Objection 


10/20/94 


Obj. Cont'd 


10/20/94 


RRC Objection 


10/20/94 


Obj. Removed 


10/20/94 


RRC Objection 


10/20/94 


Obj. Removed 


10/20/94 



RRC Objection 


10/20/94 


Obj. Removed 


10/20/94 


RRC Objection 


10/20/94 


Obj. Removed 


10/20/94 


RRC Objection 


10/20/94 


Obj. Removed 


10/20/94 


RRC Objection 


10/20/94 


Obj. Removed 


10/20/94 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 



RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 
RRC Objection 
Obj. Removed 



10/20/94 
10/20/94 



RRC Objection 10/20/94 

Obj. Removed 10/20/94 

RRC Objection 10/20/94 

Obj. Removed 10/20/94 



10/20/94 
10/20/94 



10/20/94 
10/20/94 
10/20/94 
10/20/94 
10/20/94 
10/20/94 



1311 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 





RRC OBJECTIONS 








18 NCAC 8 .0903 - Withdrawal of Grant Offer 


RRC Objection 


10/20/94 




Agency Revised Rule 


Obj. Removed 


10/20/94 


18 NCAC 8 . 1002 - Inspection of Project 


RRC Objection 


10/20/94 




Agency Revised Rule 


Obj. Removed 


10/20/94 


18 NCAC 8 . 1003 - Audit of Projects 


RRC Objection 


10/20/94 




Agency Revised Rule 


Obj. Removed 


10/20/94 




18 NCAC 8 . 1209 - Courses of Instruction for Recertification 


RRC Objection 


10/20/94 




Agency Revised Rule 


Obj. Removed 


10/20/94 



9:16 NORTH CAROLINA REGISTER November 15, 1994 1312 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions 
along with an index to all recent contested cases decisions which are filed under North Carolina s 
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available 
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698. 



AGENCY 



CASE 
NUMBER 



AU 



BATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



ADMINISTRATION 

North CaroUna Council for Women 

Family Violence Prevention Services v. N.C. Council for Women 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Jerry Lee McGowan v. Alcoholic Beverage Control Comm. 

Alcoholic Beverage Control Comm. v. Entertainment Group, Inc. 

Alcoholic Beverage Control Comm. v. Daehae Chang 

Rayvon Stewart v. Alcoholic Beverage Control Commission 

Alcoholic Beverage Control Comm. v. Branchland, Inc. 

Alcoholic Beverage Control Comm. v. Peggy Sutton Walters 

Russell Bernard Speller d/b/a Cat's Disco v. Alcoholic Bev Ctl Comm. 

Alcoholic Beverage Control Comm. v. Branchland, Inc. 

Edward Ogunjobi, Club Piccadilli v. Alcoholic Beverage Control Comm. 

Robert Kovalaske, Nick Pikoulas, Joseph Marshbum, Evangelos Pikoulas, 

d/b/a Our Mom's BBQ v. Alcoholic Beverage Control Commission 
Christine George Williams v. Alcoholic Beverage Control Comm. 
Lynn Ann Garfagna v. Alcoholic Beverage Control Commission 
Alcoholic Beverage Control Comm. v. Raleigh Limils, Inc. 
Alcoholic Beverage Control Comm. v. COLAP Enterprises, Inc. 
Alcoholic Beverage Control Comm. v. Mitch's Tavern, Inc. 
Alcoholic Beverage Control Comm. v. Ms. Lucy Jarrell Powell 
Alcoholic Beverage Control Comm. v. Richard Wayne Barrow 
Alcoholic Beverage Control Comm. v. Daphne Ann Harrell 
Mr. & Mrs. Josh Bullock Jr. v. Alcoholic Beverage Control Comm. 
Jerome Crawford v. Alcoholic Beverage Control Commission 
Lawrence Mungin v. Alcoholic Beverage Control Commission 
Willie Poole Jr. v. Alcoholic Beverage Control Commission 
Alonza Mitchell v. Alcoholic Beverage Control Commission 
Roy Dale Cagte v. Alcoholic Beverage Control Commission 
Christopher C. Gause, James A Jinwright v. Alcoholic Bev. Ctl. Comm. 
Rajaddin AbdelazLz v. Alcoholic Beverage Control Commission 

COMMERCE 



94 DOA 0242 



West 



04/13/94 



93 ABC 0363 


Morrison 


08/23/94 


93 ABC 0719 


Gray 


03/02/94 


93 ABC 0775 


Morrison 


09/21/94 


93 ABC 0793 


Nesnow 


04/11/94 


93 ABC 0892 


Morgan 


06/03/94 


93 ABC 0906 


Mann 


03/18/94 


93 ABC 0937 


Morrison 


03/07/94 


93 ABC 0993 


Morgan 


06/03/94 


93 ABC 1024 


West 


03/03/94 


93 ABC 1029 


Gray 


03/04/94 


93 ABC 1057 


Bee ton 


04/21/94 


93 ABC 1481 


Gray 


07/19/94 


93 ABC 1485 


Mann 


03/11/94 


94 ABC 0060 


Nesnow 


06/07/94 


94 ABC 0064 


Gray 


07/26/94 


94 ABC 0070 


Morgan 


06/06/94 


94 ABC 0079 


Gray 


10/14/94 


94 ABC 0115 


Nesnow 


07/18/94 


94 ABC 0124 


Morgan 


06/06/94 


94 ABC 0125 


Morgan 


06/06/94 


94 ABC 0149 


Chess 


08/08/94 


94 ABC 0232 


Chess 


09/02/94 


94 ABC 0257 


Morrison 


07/28/94 


94 ABC 0260 


West 


07/13/94 


94 ABC 0532 


Gray 


09/27/94 


94 ABC 0600 


Chess 


09/22/94 



9:11 NCR 870 



Savings Institutions Division 

James E. Byerc, et al v. Savings Institutions 

CORRECTION 

Division of Prisons 

Gene Strader v. Department of Correction 

CRIME CONTROL AND PUBLIC SAFETY 

Joseph Guernsey & Parents, Robert Guernsey & Dolores Guernsey 
v. Pitt County Hospital Eastern Radiologists 



93 COM 1622 Chess 03/01/94 



94 DOC 0252 Morrison 03/21/94 



94 CPS 0413 



Gray 07/11/94 



1313 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



CONTESTED CASE DECISIONS 



AGENCY 



Crime Victims Compensation Commission 

Mae H. McMillan v. Crime Victims Compensation Commission 

James Hugh Baynes v. Crime Victims Compensation Commission 

Ross T. Bond v. Victims Compensation Commission 

James A. Canady v. Crime Victims Compensation Commission 

Virginia Roof v. Department of Crime Control & Public Safety 

Kaien C. Tilgbman v. Crime Victims Compensation Commission 

Rosemary Taylor v. Crime Victims Compensation Commission 

Violet E. Kline v. Crime Victims Compensation Commission 

James Benton v. Crime Victims Compensation Commission 

Percy Clark v. Crime Victims Compensation Commission 

J. Richard Spencer v. Crime Victims Compensation Commission 

Albert H. Walker v. Crime Victims Compensation Commission 

Barbara Henderson v. Crime Victims Compensation Commission 

Shirley Handsome v. Crime Victims Compensation Commission 

Georgeann Young v. Crime Victims Compensation Commission 

Lawrence L. Tyson v. Crime Victims Compensation Commission 

Ada Battle v. Crime Victims Compensation Commission 

Lyman L. Chapman v. Crime Victims Compensation Commission 

Douglas and Virginia Wilson v. Crime Victims Compensation Comm. 

Blanche J. Taylor v. William HookB Jr., Crime Victims Comp. Comm. 

Michelle L. Wilcox v. Crime Victims Compensation Commission 

Charlie E. McDonald v. Crime Victims Compensation Commission 

Michael G. Low v. Crime Victims Compensation Commission 

Torbit Smith v. Victims Compensation Commission 

Maureen P. Wilson v. Crime Victims Compensation Commission 

Kay Thompson Chambers v. Crime Victims Compensation Commission 

James R. Gray v. Crime Victims Compensation Commission 

Ha2el Jarvis v. Victims Compensation Commission 

ftrttie Hale v. Victims Compensation Fund 

Dana Harris v. Crime Victims Compensation Commission 

Dorian Walter St. F^trick Scott v. Victims Compensation Comm. 

Mary E. Haskins v. Crime Victims Compensation Commission 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



92 CPS 1328 


Morgan 


08/11/94 


93 CPS 0801 


West 


03/28/94 


93 CPS 1 104 


West 


04/21/94 


93 CPS 1108 


Gray 


03/28/94 


93 CPS 1347 


Nesnow 


03/24/94 


93 CPS 1608 


Reilly 


05/17/94 


93 CPS 1626 


Nesnow 


05/25/94 


93 CPS 1670 


Morgan 


06/13/94 


94 CPS 0034 


Chess 


06/14/94 


94 CPS 0127 


Reilly 


04/19/94 


94 CPS 0157 


Chess 


06/14/94 


94 CPS 0229 


Reilly 


08/11/94 


94 CPS 0259 


Morrison 


04/07/94 


94 CPS 0286 


Gray 


04/28/94 


94 CPS 0292 


Reilly 


04/18/94 


94 CPS 0368 


Gray 


04/26/94 


94 CPS 0414 


Reilly 


08/23/94 


94 CPS 0415 


Chess 


06/02/94 


94 CPS 0417 


Reilly 


06/07/94 


94 CPS 0464 


Mann 


10/28/94 


94 CPS 0467 


Reilly 


06/07/94 


94 CPS 0468 


Gray 


09/02/94 


94 CPS 0524 


Morrison 


06/13/94 


94 CPS 0535 


Bee ton 


10/26/94 


94 CPS 0567 


Gray 


09/23/94 


94 CPS 0581 


Morrison 


09/28/94 


94 CPS 0603 


Reilly 


08/19/94 


94 CPS 0664 


Chess 


07/29/94 


94 CPS 0734 


West 


09/06/94 


94 CPS 0832 


Nesnow 


09/26/94 


94 CPS 0883 


Nesnow 


10/04/94 


94 CPS 1406 


Gray 


03/17/94 



PUBLISHED DECISION 
REGISTER CITATION 



9:2 NCR 114 



9:6 NCR 407 



9:13 NCR 1056 



EMPLOYMENT SECURITY COMMISSION 



David Lee Bush v. Employment Security Commission 
ENVIRONMENT. HEALTH, AND NATURAL RESOURCES 



91 ESC 0395 



Reilly 



08/18/94 



Bobby Stallings v. Environment, Health, and Natural Resources 

James M. Lyles v. Brunswick County Office of Permits 

William P. Shaver, R. McKinnon Morrison IU, fill Ray, Dr. Wesley 

C. Ray, Douglas W. Furr, Catherine H. Furr & Caldwell Creek Farm, Inc. 

v. EHNR-State of North Carolina 
Ron D. Graham, Suzanne C. Graham v. Robert Cobb, Mecklenbuig Cty 
Carnel D. Pearson Jr. v. Craven Co. Division of Health & DEHNR 
Patricia D. Solomon v. Macon County Health Department 
Elbert L. Winslow v. EHNR/Guilfoid Cty Health Dept. & Guilford Cty 

Planning & Zoning Board 
Kathryn A. Whitley v. Macon County Health Department 
Brook Hollow Estates v. Environment, Health, & Natural Resources 
Bobby Combs v. Public Water Supply Section 

Oceanfront Court, David C. Gagnon v. Environment, Health, & Nat. Res. 
Sam's Club #8219 v. Mecklenbuig County Health Department 
Everhart & Associates., Inc. and Hettie Tolson Johnson v. Environment, 

Health, and Natural Resources and Zelig Robinson 
Richari A. Jenkins v. NC Water Pollution Ctl. Sys. Op. Cert. Comm. 
Eugene Crawford & Nancy P. Crawford v. Macon County Health Dept. 
Joseph B. Leggett v. Environment, Health, & Natural Resources 
Tri-Circuite, Inc. v. Environment, Health, & Natural Resources 
Irene, Will, Eric Li taker v. Montgomery County Health Department 



90 EHR 0612 


Morgan 


08/11/94 




92 EHR 0333 


Chess 


09/22/94 




93 EHR 0452 


Morgan 


08/11/94 




93 EHR 1017 


Becton 


05/31/94 




93 EHR 1759 


Mann 


09/06/94 




93 EHR 1777 


West 


05/23/94 




94 EHR 0086 


Chess 


07/13/94 




94 EHR 0088 


West 


07/13/94 




94 EHR 0093 


West 


06/03/94 




94 EHR 0202 


West 


10/19/94 




94 EHR 0210 


Chess 


06/21/94 




94 EHR 0329 


Nesnow 


06/15/94 


9:7 NCR 496 


94 EHR 0392 


Reilly 


10/18/94 


9:15 NCR 1231 


94 EHR 0424 


West 


10/11/94 




94 EHR 0500 


Gray 


06/10/94 




94 EHR 0560 


West 


09/21/94 




94 EHR 0601 


Morrison 


06/30/94 




94 EHR 0776 


Gray 


09/06/94 





9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1314 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Coastal Management 

Roger Fuller v. EHNR, Div. of Coastal Mgmt & Environmental Mgmt 
Roger Fuller v. EHNR, Div. of Coastal Mgmt & Environmental Mgmt 
John R. Hooper v. EHNR, Div./Coastal Mgmt & Bird's Nest Partnership 
Gary E. Montalbine v. Division of Coastal Management 
Paley-Midgett Partnership v. Coastal Resources Commission 



89 EHR 1378* 


Gray 


04/07/94 


90 EHR 0017* 


Gray 


04/07/94 


90 EHR 0455 


Morgan 


08/11/94 


93 EHR 1792 


Nesnow 


03/21/94 


94 EHR 0315 


Gray 


06/01/94 



Environmental Health 



Jane C. O'Malley, Melvin L. Cartwright v. EHNR & District Hlth Dept 

fesquotank-Fferquimans-Camden-ChOTvan 
Henry Lee Bulluck v. Nash County Health Department & EHNR 
Environment, Health, & Natural Res. v. Clark Harris & Jessie Lee Harris 
Richaid E Ebeisold v. Jackson County Health Department & EHNR 
Sidney S. Tate Jr. v. Dept. of Environment, Health, &. Natural Resources 
George A Waugh, Shirley A. Waugh v. Carteret Cty Health & Env. Hlth 
Scotland Water Co., Laurin Lakes v. Environment, Health, & Nat. Res. 
H.A. Lentz v. Department of Environment, Health, & Natural Resources 
Floyd Benn Williams v. Dept. of Environment, Health, & Nat. Res. 

Environmental Management 

David Springer v. Dept. of Environment, Health, & Natural Resources 
Petroleum Installation Equipment Co., Inc. v. Env., Health & Nat. Res. 
Jack Griffin v. Dept. of Environment, Health, and Natural Resources 
Wooten Oil Company v. EHNR, Div of Environmental Management 
John G. Owens & J.B.S. Mechanical Svcs, Inc. v. EHNR, Env. Mgmt. 



91 EHR 0838 


Bee ton 


04/06/94 


93 EHR 0348 


Morgan 


07/22/94 


93 EHR 0924 


Bee ton 


03/03/94 


93 EHR 1391 


Chess 


06/24/94 


94 EHR 0005 


Reilly 


05/24/94 


94 EHR 0128 


Chess 


07/13/94 


94 EHR 0200 


Nesnow 


04/27/94 


94 EHR 0235 


Nesnow 


07/19/94 


94 EHR 0333 


Reilly 


05/18/94 



92 EHR 1797 


Morgan 


05/19/94 


93 EHR 0531 


Chess 


03/21/94 


93 EHR 1030 


Bee ton 


03/21/94 


94 EHR 0001 


West 


09/30/94 


94 EHR 0024 


Mann 


09/07/94 



Land Resources 

Wallace B. Clayton, Dr. Marshall Redding v. Div. of Land Resources 
Town of Kernersville (LQS 93-053} v. Environment, Health, & Nat. Res. 
Royce Perry, Ffcul Perry v. Dept. of Environment, Health, & Natural Res. 

Marine Fisheries 



93 EHR 1407 


Morgan 


08/09/94 


93 EHR 1781 


Chess 


06/29/94 


94 EHR 0525 


Gray 


07/01/94 



9:8 NCR 



581 



Robert I. Swinson, Virginia S. Swinson v. EHNR, Div/Marine Fisheries 

Larry J. Batson v. Division of Marine Fisheries 

David W. Oglesby v. Division of Marine Fisheries 

David E. Oglesby v. Division of Marine Fisheries 

James Goodman v. EHNR, Division of Marine Fisheries 

Billy Ervin Burton v. Division of Marine Fisheries 



93 EHR 0394 


Gray 


04/11/94 






93 EHR 0857 


Morgan 


07/22/94 






93 EHR 0930* 


West 


07/25/94 


9:10 NCR 


758 


93 EHR 0931* 


West 


07/25/94 


9:10 NCR 


758 


94 EHR 0035 


Nesnow 


07/18/94 


9:9 NCR 


660 


94 EHR 0504 


Nesnow 


09/01/94 







Maternal and Child Health 



W1C Section 



Anthony Awueah v. EHNR, Div. Maternal & Child Health, WIC Section 94 EHR 0718 Chess 



09/23/94 



Solid Waste Management 

Roger Sessoms v. EHNR/ Asbestos Hazard Management Branch 93 EHR 0951 Gray 03/28/94 

Bertie Citizens Action Coalition, Inc.; Willaid J. Oliver, Reginald Early, 93 EHR 1045 Morrison 04/06/94 

Herbert Jenkins, Jr., Lindwood Earl Tripp, Willie Warren Tripp, Mary 

Alice Cherry, and Kathy Burden v. EHNR, Solid Waste Management 

Division, and East Carolina Environmental, Inc., Addington Environmental, 

Inc., et al. 
Bobby Benton v. EHNR & Division of Solid Waste 94 EHR 0442 Gray 08/22/94 



9:3 NCR 214 



Consolidated Cases. 



1315 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



CONTESTED CASE DECISIONS 



AGENCY 



HUMAN RESOURCES 

Jerome Triplin v. Department of Human Resources 

Helen J. Walls, Walls Young World v. Department of Human Resources 

Brenda C. Robinson v. Department of Human Resources 

Betty Rhodes v. Department of Human Resources 

Distribution Child Support 

Mona L. Stanback v. DHR, Div/Social Svcs, Child Support Enf. Section 
Jachell D. Writer v. Department of Human Resources 
Earleen G. Tinsley v. Department of Human Resources 

Division of Child Development 

Judith Fridley v. Div. of Child Development/Abuse/Neglect Unit 

DHR, Division of Child Development v. Joyce Gale 

Laureen Holt, ID#26-0-00037 v. DHR, Div. of Child Development 

Gloria C. Haith v. Department of Human Resources 

Gloria C. Haith v. Daycare Consultant 

Charles E. Smith v. Department of Human Resources 

Scotfs Loving Day Care & Nursery, Mrs. Willie L. Scott v. DHR 

Belinda K. Mitchell v. Human Resources, Div. of Child Development 

Living Word Day Care, Jonathan Lankford v. Dept. of Human Resources 

David G. Whitted, Pros., Toddlers Academy, Inc. v. Div of Child Dev. 

Facility Services 

Laura Harvey Williams v. DHR, Division of Facility Services 

Presbyterian-Orthopaedic Hospital v. Department of Human Resources 

Judy Hoben Wallace v. Department of Human Resources 

Lowell Stafford v. Department of Human Resources 

Willie J. McCombs v. Human Resources, Div. of Facility Services 

Mr. & Mrs. Alvin Wilson v. DHR, Division of Facility Services 

Certificate of Need Section 

Charles E. Hunter, Jr., M.D. & Coastal Perfusion Svcs, Inc. v. 

Department of Human Resources, and Wilmington Perfusion 

Corp. and Howard F. Marks, Jr., M.D. 
Cape Fear Memorial Hospital v. Department of Human Resources 
Angel Community Hospital, Inc. v. DHR, Div. of Facility Svcs., Cert./ 

Need Section, and Britthsven, Inc., d/b/a Britthaven of Franklin 
The Carrolton of Fayetteville, Inc. v. Department of Human Resources 

and 
Highland House of Fayetteville, Inc. & Richard R. Allen Sr. v. DHR 
The Carrolton of Fayetteville, Inc. v. Department of Human Resources 

and 
Highland House of Fayetteville, Inc. & Richard R. Allen Sr. v. DHR 

Division of Medical Assistance 

J.R., by and through her agent & Personal Rep., Hank Neal v. DHR 
N.R. by & through her agt & personal rep E.C.J, v. DHR, Medical Assis. 
David Yott v. Department of Human Resources 

Sampson County Memorial Hospital v. DHR, Div of Medical Assistance 
Division of Medical Assistance v. Catawba Cty Dept. of Social Services 
Lu Ann Leidy, MD/Dorothea Dix Hosp. Child & Youth v. Medical Assis. 

Division of Social Services 

Evelyn Moore v. Department of Human Resources 

Nathaniel Harrell, Annie Harrell v. Department of Social Services 

Child Support Enforcement Section 

Alfred Bennett v. Department of Human Resources 
Shelton Staples v. Department of Human Resources 



CASE 
NUMBER 



AU 



DATE OF 
DECISION 



93 DHR 0108 


Reilly 


08/19/94 


93 DHR 0965 


Morgan 


08/11/94 


94 DHR 0365 


West 


06/01/94 


94 DHR 0501 


Morrison 


06/02/94 



93 DCS 0969 


Morgan 


08/02/94 


93 DCS 0371 


Morgan 


07/14/94 


94 DCS 0651 


Nesnow 


09/15/94 



93 DHR 0973 


Morrison 


03/08/94 


93 DHR 1344 


Gray 


04/28/94 


93 DHR 1549 


Bee ton 


07/13/94 


93 DHR 1707 


Nesnow 


03/22/94 


93 DHR 1787 


Nesnow 


03/14/94 


93 DHR 1797 


Nesnow 


03/21/94 


94 DHR 0106 


Nesnow 


06/29/94 


94 DHR 0119 


Reilly 


06/30/94 


94 DHR 0168 


Nesnow 


03/23/94 


94 DHR 0453 


Mann 


09/23/94 



93 DHR 0391 


Morgan 


08/11/94 


93 DHR 0805 


Reilly 


03/11/94 


93 DHR 0935 


Gray 


05/23/94 


93 DHR 1381 


Gray 


04/15/94 


94 DHR 0430 


Gray 


09/29/94 


94 DHR 0559 


Chess 


08/25/94 



93 DHR 0746 


Morgan 


04/11/94 


93 DHR 1552 


Reilly 


08/15/94 


94 DHR 0146 


West 


10/21/94 


94 DHR 0197*> 


Morgan 


08/11/94 


94 DHR 0198* 5 


Morgan 


08/11/94 



93 DHR 0528 


Gray 


04/27/94 


93 DHR 0538 


Chess 


07/01/94 


93 DHR 1113 


Gray 


04/05/94 


93 DHR 1760 


West 


09/07/94 


93 DHR 1778 


West 


03/04/94 


94 DHR 0448 


Chess 


06/21/94 



94 DHR 0293 
94 DHR 0440 



90CSE 1146 
91 CSE 0660 



Reilly 
Gray 



Morgan 
Morgan 



04/15/94 
06/27/94 



08/11/94 
08/11/94 



PUBLISHED DECISION 
REGISTER CITATION 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1316 



CONTESTED CASE DECISIONS 



AGENCY 



Helen Lee Harvell Jones v. Department of Human Resources 

Dalton Fellon Sr. v. Department of Human Resources 

Colby S. Hughes v. Department of Human Resources 

Gary Eugene Honeycutt v. Department of Human Resources 

Vicki C. Conn v. Department of Human Resources 

John R. Lossiah v. Department of Human Resources 

Melvin L. Miller Sr. v. Department of Human Resources 

Robert L. Hicks v. Department of Human Resources 

Thomas Sadler v. Department of Human Resources 

Darryl D. Leedy v. Department of Human Resources 

David M. Fogleman Jr. v. Department of Human Resources 

William Heckstall v. Department of Human Resources 

Luther Hatcher v. Department of Human Resources 

Bryan Jeffrey Cole v. Department of Human Resources 

Anthony E. Bullard v. Department of Human Resources 

Donald E. Height v. Department of Human Resources 

Dexter L. Chambers v. Department of Human Resources 

Ronald E. Johnson v. Department of Human Resources 

Roger Moore v. Department of Human Resources 

AJvin Lee Martin v. Department of Human Resources 

James J. Malloy v. Department of Human Resources 

Robert Young v. Department of Human Resources 

Henry M. Dillard v. Department of Human Resources 

Vernon Byrd v. Department of Human Resources 

Antonio Townsend v. Department of Human Resources 

Keith M. Gray v. Department of Human Resources 

Troy E. Pinkney v. Department of Human Resources 

Anthony A. Macon v. Department of Human Resources 

Walter Lee Corbett v. Department of Human Resources 

Joseph E. Kemstine v. Department of Human Resources 

Alvin M. Davis v. Department of Human Resources 

Thomas M. Birdwell III v. Department of Human Resources 

Joe Louis Mayo v. Department of Human Resources 

Bobty Lewis Smith v. Department of Human Resources 

Lawrence D. Dean v. Department of Human Resources 

Louis C. Cade v. Department of Human Resources 

Richard J. Swarm v. Department of Human Resources 

Nash Andrew Newsome v. Department of Human Resources 

James E. Watson v. Department of Human Resources 

Robert Lee Barrett v. Department of Human Resources 

Anthony Raynor Sr. v. Department of Human Resources 

Betty A. Williams, Fred E. Jones v. Department of Human Resources 

Jeff A. Taylor v. Department of Human Resources 

Eric G. Sykes v. Department of Human Resources 

Terrence D. Timmons v. Department of Human Resources 

Ray A. Johnstone v. Department of Human Resources 

Morris Ray Bethel v. Department of Human Resources 

Willie C. Hollis v. Department of Human Resources 

Edward Boggan v. Department of Human Resources 

Raymond Junior Cagle v. Department of Human Resources 

Ernest N. Pruitt Jr. v. Department of Human Resources 

Michael P. McCay v. Department of Human Resources 

Robert Matthew Rossi v. Department of Human Resources 

Bernadett Cook v. Department of Human Resources 

Rawan Weigel v. Department of Human Resources 

Lem Pereon v. Department of Human Resources 

Bobby Lee MeCuIIers Jr. v. Department of Human Resources 

Randall R. Rhodes v. Department of Human Resources 

Glen Nelson Washington v. Department of Human Resources 

Michael V. Dockery v. Department of Human Resources 

Robert Corley Jr. v. Department of Human Resources 

Floyd E. Bailey v. Department of Human Resources 

Dennis W Nolan v. Department of Human Resources 

Robert Calvin Connor v. Department of Human Resources 

James D. Williams v. Department of Human Resources 

Mahalon Eugene White v. Department of Human Resources 

Marty Franzen v. Department of Human Resources 

Vaughn D. Peareall v. Department of Human Resources 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION REGISTER CITATION 


91 CSE 1183 


Morgan 


08/11/94 


92 CSE 0532 


Morgan 


07/13/94 


92 CSE 1199 


Morgan 


08/10/94 


92 CSE 1207 


Morgan 


08/10/94 


92 CSE 1268 


Morgan 


08/10/94 


92 CSE 1345 


Mann 


10/13/94 


92 CSE 1372 


Morgan 


08/10/94 


92 CSE 1591 


Morgan 


08/10/94 


92 CSE 1739 


Bee ton 


10/18/94 


93 CSE 0591 


Morgan 


08/11/94 


93 CSE 1074 


Mann 


10/10/94 


93 CSE 1077 


Reilly 


03/14/94 


93 CSE 1082 


Mann 


05/24/94 


93 CSE 1091 


Bee ton 


03/30/94 


93 CSE 1094 


Nesnow 


06/13/94 


93 CSE 1110 


Morgan 


08/11/94 


93 CSE 1 124 


West 


03/28/94 


93 CSE 1125 


Bee ton 


03/30/94 


93 CSE 1127 


Bee ton 


04/14/94 


93 CSE 1128 


Nesnow 


04/04/94 


93 CSE 1132 


Gray 


10/03/94 


93 CSE 1133 


Reilly 


04/18/94 


93 CSE 1 135 


Nesnow 


06/13/94 


93 CSE 1136 


Bee ton 


08/22/94 


93 CSE 1139 


Bee ton 


03/30/94 


93 CSE 1140 


Nesnow 


06/28/94 


93 CSE 1148 


Mann 


03/29/94 


93 CSE 1149 


Gray 


04/26/94 


93 CSE 1150 


Reilly 


03/30/94 


93 CSE 1151 


Morgan 


07/15/94 


93 CSE 1152 


Morgan 


08/04/94 


93 CSE 1155 


Morgan 


08/02/94 


93 CSE 1161 


West 


04/19/94 


93 CSE 1162 


Nesnow 


06/16/94 


93 CSE 1165 


Gray 


10/27/94 


93 CSE 1166 


Morrison 


06/16/94 


93 CSE 1167 


Reilly 


06/17/94 


93 CSE 1170 


Mann 


03/17/94 


93 CSE 1171 


Gray 


04/26/94 


93 CSE 1172 


Morrison 


04/20/94 


93 CSE 1 173 


Morrison 


10/27/94 


93 CSE 1178 


Nesnow 


04/20/94 


93 CSE 1180 


Morgan 


07/15/94 


93 CSE 1181 


Beeton 


04/20/94 


93 CSE 1183 


Bee ton 


10/11/94 


93 CSE 1186 


Morrison 


10/03/94 


93 CSE 1188 


West 


07/11/94 


93 CSE 1191 


Beeton 


05/09/94 


93 CSE 1192 


Chess 


09/01/94 


93 CSE 1194 


Morrison 


10/03/94 


93 CSE 1197 


Nesnow 


06/28/94 


93 CSE 1198 


Morgan 


08/02/94 


93 CSE 1199 


Beeton 


08/22/94 


93 CSE 1202 


Gray 


04/27/94 


93 CSE 1212 


Gray 


08/26/94 


93 CSE 1214 


Morrison 


06/16/94 


93 CSE 1215 


Reilly 


06/17/94 


93 CSE 1219 


Nesnow 


06/16/94 


93 CSE 1221 


Morgan 


08/02/94 


93 CSE 1222 


Morgan 


07/15/94 


93 CSE 1225 


Chess 


10/05/94 


93 CSE 1227 


Mann 


07/07/94 


93 CSE 1254 


Morrison 


04/27/94 


93 CSE 1258 


West 


04/19/94 


93 CSE 1259 


West 


04/19/94 


93 CSE 1261 


Nesnow 


08/22/94 


93 CSE 1264 


Morgan 


07/15/94 


93 CSE 1267 


Beeton 


04/20/94 



1317 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



CONTESTED CASE DECISIONS 



AGENCY 



Gerald L. Murrcll v. Department of Human Resources 
Larry D. Dawson v. Department of Human Resources 
McDaniel Teeter Jr. v. Department of Human Resources 
King D. Graham v. Department of Human Resources 
Brian C. Carelock v. Department of Human Resources 
Bradford C. Lewis v. Department of Human Resources 
Derek Watson v. Department of Human Resources 
Luther Borden v. Department of Human Resources 
Walter B. Lester v. Department of Human Resources 
Wilbert E. Anderson v. Department of Human Resources 
David H. Johnson v. Department of Human Resources 
William Earl Arrington v. Department of Human Resources 
William K. Whisenant v. Department of Human Resources 
Curtis C. Osborne v. Department of Human Resources 
Stanley J. Forsack v. Department of Human Resources 
Larry Cornelius Smith v. Department of Human Resources 
Robert C. Lee Jr. v. Department of Human Resources 
Sidney Ray Tuggle Jr. v. Department of Human Resources 
Michael A. Amos v. Department of Human Resources 
Reginald Eugene Hill v. Department of Human Resources 
Jimmy C. Harvell v. Department of Human Resources 
John Edward Tannehill v. Department of Human Resources 
Benjamin McCormick v. Department of Human Resources 
Steven Connet v. Department of Human Resources 
Gregory N. Winley v. Department of Human Resources 
Ronald Brown v. Department of Human Resources 
Ronald Fred Metzger v. Department of Human Resources 
James L. Phillips v. Department of Human Resources 
John D. Bryant v. Department of Human Resources 
George Aaron Collins v. Department of Human Resources 
Ricky Glenn Mabe v. Department of Human Resources 
Samuel L. Dodd v. Department of Human Resources 
James W. Smith v. Department of Human Resources 
William A. Sellers v. Department of Human Resources 
Jerry Mclver v. Department of Human Resources 
Johnny B. Little v. Department of Human Resources 
Kenneth W. Cooper v. Department of Human Resources 
Nathan D. Winston v. Department of Human Resources 
Bobly Charles Coleman v. Department of Human Resources 
Anthony Curry v. Department of Human Resources 
Charles W. Norwood Jr. v. Department of Human Resources 
David L. Terry v. Department of Human Resources 
Audwin Lindsay v. Department of Human Resources 
Steven A. Elmquist v. Department of Human Resources 
Kelvin Dean Jackson v. Department of Human Resources 
Jerry R. GibBon v. Department of Human Resources 
Melvin Lewis Griffin v. Department of Human Resources 
Dennis E. Fountain Jr. v. Department of Human Resources 
Mark E. Rogers v. Department of Human Resources 
Daniel J. McDowell v. Department of Human Resources 
Edna VonCannon v. Department of Human Resources 
Darron J. Roberte v. Department of Human Resources 
Ephrom Sparkman Jr. v. Department of Human Resources 
Terry James CarotherB v. Department of Human Resources 
Thomas A. Ayers v. Department of Human Resources 
Daniel Thomas Hefele v. Department of Human Resources 
Gilbert J. Gutierrez v. Department of Human Resources 
Alton D. Johnson v. Department of Human Resources 
Darryl C. Thompson v. Department of Human Resources 
Jeffery E. Holley v. Department of Human Resources 
Chester Sanders v. Department of Human Resources 
Rodney Guyton v. Department of Human Resources 
Nelson Bennett v. Department of Human Resources 
Donald W. Clark v. Department of Human Resources 
William E. David Jr. v. Department of Human Resources 
Arthur Lee Carter v. Department of Human Resources 
Frank RetfF v. Department of Human Resources 
John J. Gabriel v. Department of Human Resources 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION REGISTER CITATION 


93 CSE 1271 


Gray 


08/26/94 


93 CSE 1273 


Morrison 


07/07/94 


93 CSE 1274 


Morrison 


06/30/94 


93 CSE 1275 


Bee ton 


05/18/94 


93 CSE 1276 


Mann 


10/13/94 


93 CSE 1278 


Mann 


10/13/94 


93 CSE 1283 


Reilly 


06/30/94 


93 CSE 1284 


West 


06/23/94 


93 CSE 1287 


Nesnow 


06/28/94 


93 CSE 1288 


Nesnow 


10/12/94 


93 CSE 1289 


Mann 


10/14/94 


93 CSE 1290 


Mann 


10/14/94 


93 CSE 1291 


Bee ton 


08/22/94 


93 CSE 1299 


Gray 


09/19/94 


93 CSE 1301 


Morrison 


08/23/94 


93 CSE 1302 


Morrison 


06/30/94 


93 CSE 1303 


Reilly 


06/30/94 


93 CSE 1307 


West 


04/25/94 


93 CSE 1308 


West 


07/15/94 


93 CSE 1309 


West 


10/06/94 


93 CSE 1310 


Nesnow 


10/27/94 


93 CSE 1312 


Nesnow 


10/03/94 


93 CSE 1313 


Morgan 


08/02/94 


93 CSE 1315 


Mann 


10/14/94 


93 CSE 1316 


Bee ton 


06/14/94 


93 CSE 1318 


Bee ton 


06/29/94 


93 CSE 1323 


Mann 


09/26/94 


93 CSE 1326 


Reilly 


06/17/94 


93 CSE 1327 


Reilly 


10/27/94 


93 CSE 1331 


West 


04/25/94 


93 CSE 1356 


Mann 


09/26/94 


93 CSE 1357 


Gray 


03/31/94 


93 CSE 1358 


Gray 


08/26/94 


93 CSE 1359 


Morrison 


04/20/94 


93 CSE 1362 


Reilly 


06/30/94 


93 CSE 1363 


West 


06/23/94 


93 CSE 1364 


West 


04/27/94 


93 CSE 1365 


Nesnow 


07/07/94 


93 CSE 1368 


Morgan 


08/02/94 


93 CSE 1371 


Chess 


08/18/94 


93 CSE 1385 


West 


06/13/94 


93 CSE 1386 


Mann 


05/18/94 


93 CSE 1390 


Morrison 


07/15/94 


93 CSE 1392 


Reilly 


04/29/94 


93 CSE 1394 


West 


06/13/94 


93 CSE 1411 


Nesnow 


08/24/94 


93 CSE 1412 


Morgan 


08/02/94 


93 CSE 1414 


Chess 


05/13/94 


93 CSE 1415 


Mann 


05/03/94 


93 CSE 1416 


Gray 


09/19/94 


93 CSE 1417 


Morrison 


06/14/94 


93 CSE 1419 


West 


08/23/94 


93 CSE 1422 


Morgan 


08/04/94 


93 CSE 1428 


Gray 


10/26/94 


93 CSE 1431 


Morrison 


06/30/94 


93 CSE 1432 


Morrison 


04/28/94 


93 CSE 1433 


Morrison 


05/13/94 


93 CSE 1434 


Reilly 


04/29/94 


93 CSE 1435 


Reilly 


06/30/94 


93 CSE 1436 


Reilly 


08/23/94 


93 CSE 1437 


West 


04/19/94 


93 CSE 1439 


West 


04/21/94 


93 CSE 1440 


Nesnow 


08/31/94 


93 CSE 1441 


Nesnow 


05/13/94 


93 CSE 1442 


Nesnow 


05/02/94 


93 CSE 1445 


Morgan 


08/10/94 


93 CSE 1448 


Bee ton 


08/22/94 


93 CSE 1452 


Chess 


05/16/94 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1318 



CONTESTED CASE DECISIONS 



AGENCY 



Robert Hayes v. Department of Human Resources 
Donald Ray Copeland v. Department of Human Resources 
Clark Anthony Bryant v. Department of Human Resources 
Timothy D. Evans v. Department of Human Resources 
Billy Edward Smith v. Department of Human Resources 
Allen D. Terrell v. Department of Human Resources 
Ray C. Moses v. Department of Human Resources 
Mickey Bridgett v. Department of Human Resources 
Stephen L. Brown v. Department of Human Resources 
David Bcduhn v. Department of Human Resources 
Bart Ransom v. Department of Human Resources 
William H. Simpson Sr. v. Department of Human Resources 
Clarence J. Gat ling Jr. v. Department of Human Resources 
James D. McClure Jr. v. Department of Human Resources 
Christopher Ivan Smith v. Department of Human Resources 
Douglas L. Cherrix v. Department of Human Resources 
Dwayne Lamont Thompson v. Department of Human Resources 
Michael Edwin Smith v. Department of Human Resources 
Horace Lee Bass v. Department of Human Resources 
Michael Wilder v. Department of Human Resources 
William Howard Wright v. Department of Human Resources 
James A. Cephas v. Department of Human Resources 
Edward E. Furr v. Department of Human Resources 
James W. Ragsdale v. Department of Human Resources 
Mark E. Campbell v. Department of Human Resources 
Vernon Lamont Weaver v. Department of Human Resources 
Jesse B. McAfee v. Department of Human Resources 
William Ellis v. Department of Human Resources 
Henry A. Harriel Jr. v. Department of Human Resources 
John H. Fortner Jr. v. Department of Human Resources 
Mike Johnson v. Department of Human Resources 
Carl E. Crump v. Department of Human Resources 
Herman F. Jacobs Jr. v. Department of Human Resources 
Barriet Easterling v. Department of Human Resources 
Dorsey L. Johnson v. Department of Human Resources 
Wade A. Burgess v. Department of Human Resources 
Billy Dale Beaney v. Department of Human Resources 
Gregory Harrell v. Department of Human Resources 
James E. Wiggins Sr. v. Department of Human Resources 
Tony A. Draughon v. Department of Human Resources 
Gregory L. Rimmer v. Department of Human Resources 
Ruben Jonathan Bostillo v. Department of Human Resources 
Timothy J. Jones v. Department of Human Resources 
Randall E. Hunter v. Department of Human Resources 
Cyrus R. Luallen v. Department of Human Resources 
Willie Hawkins v. Department of Human Resources 
B.A. Sellen v. Department of Human Resources 
Gary T. Hudson v. Department of Human Resources 
Alton E. Simpson Jr. v. Department of Human Resources 
Johnny T. Usher v. Department of Human Resources 
Tim H. Maxwell v. Department of Human Resources 
Charles Darrell Matthews v. Department of Human Resources 
John William Vance Jr. v. Department of Human Resources 
Bobby R. Sanders v. Department of Human Resources 
Michael S. Rhynes v. Department of Human Resources 
Gerry Bernard Whitfield v. Department of Human Resources 
Denise L. Smith v. Department of Human Resources 
Brian Gilmore v. Department of Human Resources 
Jesse Jeremy Bullock v. Department of Human Resources 
Jeffrey Alston v. Department of Human Resources 
Ronald E. Loweke v. Department of Human Resources 
Robert D. I^rker v. Department of Human Resources 
Charles F. McKirahan Jr. v. Department of Human Resources 
Bennie E. Hicks v. Department of Human Resources 
Herbert Council v. Department of Human Resources 
Richard Rachel v. Department of Human Resources 
Alan V. Teubert v. Department of Human Resources 
Henry L. Ward Jr. v. Department of Human Resources 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION REGISTER CITATION 


93 CSE 1453 


Mann 


07/07/94 


93 CSE 1454 


Mann 


10/10/94 


93 CSE 1455 


Gray 


06/30/94 


93 CSE 1460 


Rally 


04/28/94 


93 CSE 1461 


West 


04/19/94 


93 CSE 1463 


Nesnow 


05/02/94 


93 CSE 1464 


Nesnow 


04/28/94 


93 CSE 1468 


Bee ton 


05/24/94 


93 CSE 1470 


Chess 


09/27/94 


93 CSE 1494 


Gray 


08/30/94 


93 CSE 1495 


Morrison 


04/29/94 


93 CSE 1497 


West 


04/19/94 


93 CSE 1499 


Morgan 


08/02/94 


93 CSE 1500 


Bee ton 


05/13/94 


93 CSE 1510 


Gray 


07/07/94 


93 CSE 1512 


Gray 


05/13/94 


93 CSE 1515 


Morrison 


04/21/94 


93 CSE 1517 


MorriBon 


08/26/94 


93 CSE 1520 


Morrison 


05/13/94 


93 CSE 1521 


Reilly 


04/28/94 


93 CSE 1522 


Reilly 


08/26/94 


93 CSE 1523 


Reilly 


05/13/94 


93 CSE 1524 


Reilly 


06/17/94 


93 CSE 1528 


Reilly 


10/12/94 


93 CSE 1537 


Nesnow 


05/19/94 


93 CSE 1538 


Nesnow 


09/23/94 


93 CSE 1539 


Nesnow 


09/26/94 


93 CSE 1540 


Morgan 


08/02/94 


93 CSE 1541 


Morgan 


08/04/94 


93 CSE 1542 


Morgan 


08/02/94 


93 CSE 1544 


Morgan 


08/04/94 


93 CSE 1545 


Bee ton 


09/23/94 


93 CSE 1557 


Chess 


09/27/94 


93 CSE 1560 


Mann 


05/18/94 


93 CSE 1565 


Gray 


09/19/94 


93 CSE 1568 


Morrison 


04/28/94 


93 CSE 1569 


Morrison 


05/13/94 


93 CSE 1570 


Morrison 


08/26/94 


93 CSE 1571 


Morrison 


05/13/94 


93 CSE 1572 


Reilly 


07/07/94 


93 CSE 1573 


Reilly 


09/23/94 


93 CSE 1574 


Reilly 


09/01/94 


93 CSE 1576 


West 


04/19/94 


93 CSE 1579 


West 


04/19/94 


93 CSE 1583 


Nesnow 


06/16/94 


93 CSE 1585 


Morgan 


08/02/94 


93 CSE 1586 


Morgan 


08/02/94 


93 CSE 1590 


Bee ton 


09/23/94 


93 CSE 1591 


Bee ton 


04/20/94 


93 CSE 1592 


Chess 


05/19/94 


93 CSE 1594 


Chess 


06/30/94 


93 CSE 1596 


West 


06/13/94 


93 CSE 1597 


Beeton 


05/13/94 


93 CSE 1598 


Nesnow 


07/25/94 


93 CSE 1599 


Nesnow 


06/30/94 


93 CSE 1601 


Gray 


10/14/94 


93 CSE 1603 


Chess 


08/18/94 


93 CSE 1615 


Chess 


05/13/94 


93 CSE 1632 


Morrison 


06/14/94 


93 CSE 1634 


Morrison 


09/28/94 


93 CSE 1635 


Reilly 


06/17/94 


93 CSE 1637 


Reilly 


06/29/94 


93 CSE 1640 


West 


06/14/94 


93 CSE 1641 


Nesnow 


07/25/94 


93 CSE 1643 


Nesnow 


07/25/94 


93 CSE 1644 


Morgan 


08/02/94 


93 CSE 1645 


Morgan 


08/10/94 


93 CSE 1646 


Morgan 


08/02/94 



1319 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



CONTESTED CASE DECISIONS 



AGENCY 



June V. Pettus v. Department of Human Resources 
Benjamin J. Stroud v. Department of Human Resources 
Charles Leonard Fletcher v. Department of Human Resources 
Tony A. Miles v. Department of Human Resources 
Dwayne L. Allen v. Department of Human Resources 
Earl Newkirk Jr. v. Department of Human Resources 
Reginald Rorie v. Department of Human Resources 
James Edward Penley v. Department of Human Resources 
Joe C. Dean v. Department of Human Resources 
Vernon Bullock v. Department of Human Resources 
Jessie Liles v. Department of Human Resources 
Raymond Scott Eaton v. Department of Human Resources 
Nelson Fowler Jr. v. Department of Human Resources 
Royston D. Blandford III v. Department of Human Resources 
Kenneth B. Taylor v. Department of Human Resources 
Ronald Erwin Williams v. Department of Human Resources 
Michael L. Franks v. Department of Human Resources 
Donnie W. Craghead v. Department of Human Resources 
Billy D. Gibson v. Department of Human Resources 
Ronald Garrett v. Department of Human Resources 
Ervin C. Harvey v. Department of Human Resources 
Wanda Jean Lee Daniels v. Department of Human Resources 
Charles E. Colston v. Department of Human Resources 
Daron Wayne Smith v. Department of Human Resources 
Maurice Franks v. Department of Human Resources 
John D. Melton v. Department of Human Resources 
Michael Lynn Jones v. Department of Human Resources 
Grayson Kelly Jones v. Department of Human Resources 
Larry Hayes v. Department of Human Resources 
Richard Eugene Dunn v. Department of Human Resources 
Timothy R. Abraham v. Department of Human Resources 
Fred Thompson Jr. v. Department of Human Resources 
Donell Howard v. Department of Human Resources 



CASE 




DATE OF PUBLISHED DECISION 


NUMBER 


ALJ 


DECISION REGISTER CITATION 


93 CSE 1647 


Bee ton 


10/31/94 


93 CSE 1648 


Bee ton 


05/19/94 


93 CSE 1649 


Bee ton 


07/20/94 


93 CSE 1654 


Mann 


05/24/94 


93 CSE 1655 


Mann 


05/17/94 


93 CSE 1680 


Morrison 


08/26/94 


93 CSE 1683 


Gray 


10/14/94 


93 CSE 1714 


Mann 


09/26/94 


93 CSE 1715 


Gray 


05/23/94 


93 CSE 1743 


Nesnow 


07/07/94 


93 CSE 1757 


Morgan 


08/02/94 


93 CSE 1761 


Bee ton 


06/29/94 


94 CSE 0039 


Mann 


10/10/94 


94 CSE 0095 


West 


04/19/94 


94 CSE 0113 


Bee ton 


10/11/94 


94 CSE 0141 


Bee ton 


09/23/94 


94 CSE 0142 


Chess 


08/16/94 


94 CSE 0163 


Mann 


09/26/94 


94 CSE 0166 


Mann 


09/26/94 


94 CSE 0227 


Reilly 


08/22/94 


94 CSE 0247 


Bee ton 


08/22/94 


94 CSE 0266 


Morgan 


08/02/94 


94 CSE 0280 


Reilly 


08/30/94 


94 CSE 0300 


Gray 


06/27/94 


94 CSE 0310 


West 


10/27/94 


94 CSE 0324 


Nesnow 


07/25/94 


94 CSE 0402 


Morgan 


08/02/94 


94 CSE 0433 


West 


09/15/94 


94 CSE 0456 


Nesnow 


08/22/94 


94 CSE 0494 


West 


07/29/94 


94 CSE 0595 


Reilly 


10/12/94 


94 CSE 0639 


Morrison 


08/31/94 


94 CSE 0672 


Reilly 


10/27/94 



JUSTICE 



Alarm Systems Licensing Board 



Alarm Systems Licensing Board v. George P. Baker 
Patrick P. Sassman v. Alarm Systems Licensing Board 
Christopher Pate v. Alarm Systems Licensing Board 
Paul J. Allen v. Alarm Systems Licensing Board 



93 DOJ 0457 


Nesnow 


03/10/94 


94 DOJ 0709 


Chess 


09/12/94 


94 DOJ 0710 


Chess 


09/12/94 


94 DOJ 0964 


West 


10/31/94 



Private Protective Services Board 



Rex Allen Jefferies v. Private Protective Services Board 
Larry C. Hopkins v. Private Protective Services Board 
Gregory K. Brooks v. Private Protective Services Board 
Stephen M. Rose v. Private Protective Services Board 
Lemuel Lee Clark Jr. v. Private Protective Services Board 
Dexter R. Usher v. Private Protective Services Board 
Frankie L. McKoy v. Private Protective Services Board 
Michael L. Bonner v. Private Protective Services Board 
Johnny R. Dollar v. Private Protective Services Board 



93 DOJ 0647 


Reilly 


08/01/94 


93 DOJ 1618 


Morrison 


03/07/94 


94 DOJ 0008 


Nesnow 


06/28/94 


94 DOJ 0359 


Nesnow 


05/19/94 


94 DOJ 0360 


Nesnow 


05/19/94 


94 DOJ 0648 


Reilly 


08/15/94 


94 DOJ 0706 


Chess 


09/09/94 


94 DOJ 0794 


Morrison 


09/14/94 


94 DOJ 0796 


Morrison 


08/24/94 



Training and Standards Division 



Curtiss Lanee Poteat v. Criminal Justice Ed. & Training Stds. Comm. 
Willie David Moore v. Criminal Justice Ed. & Training Stds. Comm. 
Glenn Travis Stout v. Criminal Justice Ed. & Training Stds. Comm. 
Steven W. Wray v. Sheriffs' Education & Training Standards Comm. 
J. Stevan North v. Sheriffs' Education & Training Standards Comm. 
Gregory Blake Manning v. Criminal Justice Ed. & Training Stds. Comm. 
Russell Pinkelton Jr. v. Sheriffs' Education & Training Stds. Comm. 
William Franklin Sheetz v. Sheriffs' Education & Training Stds. Comm. 
James M. Buie v. Criminal Justice Ed. & Training Stds. Comm. 
Burns E. Anderson v. Criminal Justice Ed. & Training Stds. Comm. 
Nelson Falcon v. Sheriffs' Education & Training Stds. Comm. 



93 DOJ 0231 


Chess 


03/28/94 






93 DOJ 1071 


Nesnow 


04/11/94 


9:3 NCR 


218 


93 DOJ 1409 


Gray 


03/03/94 






93 DOJ 1803 


Chess 


06/29/94 






94 DOJ 0040 


Chess 


06/16/94 






94 DOJ 0048 


Gray 


03/29/94 






94 DOJ 0118 


Gray 


08/10/94 






94 DOJ 0196 


Chess 


06/16/94 






94 DOJ 0401 


Nesnow 


08/26/94 






94 DOJ 0574 


Becton 


10/04/94 


9:15 NCR 


1234 


94 DOJ 0611 


Mann 


08/12/94 







9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1320 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



93 BMS 0532 



93 OSP 1690 



MORTUARY SCIENCE 

Mortuary Science v. Perry J. Brown, & Brown's Funeral Directors 

PUBLIC EDUCATION 

Nancy Watson v. Board of Education 

Janet L. Wilcox v. Carteret County Boaid of Education 

Annice Granville, Phillip J. Granville v. Onslow County Bd. of Education 

Mary Ann Sciullo & Frank Sciullo on behalf of their minor child, 

Samuel W. Sciullo v. State Boaid of Education 
Wayne Hogwood v. Department of Public Instruction 

STATE HEALTH BENEFITS OFFICE 

Linda C. Campbell v. Teachers & St Emp Major Medical Plan 
Timothy L. Coggins v. Teachers' & St Emp Comp Major Med Plan 
Sandra Tatum v. TeacherB & State Employees Comp Major Medical Plan 
P.H.B. v. Teachers & State Employees Comp Major Medical Plan 

STATE PERSONNEL 

Michael L. K. Benson v. Office of State Personnel 

Agricultural and Technical State University 

Linda D. Williams v. Agricultural and Technical State University 
Juanita D. Murphy v. Agricultural and Technical State University 
Thomas M. Simpson v. Agricultural and Technical State University 
PricellaM. Curtis v. A&T State University Curriculum & Instruction 

Department of Agriculture 

Donald H. Crawford v. Department of Agricultue 

NC School of the Arts 

Rick McCullough v. Search Comm School/Dance, NC School of the Arts 94 OSP 051 1 

Burner Adolescent Treatment Center 

Alvin Lamonte Breeden v. Butner Adolescent Treatment Center 

Catawba County 

Sandra J. Cunningham v. Catawba County 

North Carolina Central University 



94 OSP 0108 



94 OSP 0899 



Dianna Blackley v. North Carolina Central University 
Ha-Yilyah Ha-She'B v. NCCU 



89 OSP 0494 
93 OSP 0875 



Chapel Bill & Carrboro City School 

Brenda J. Parker v. Stella Nickerson, Chapel Hill & Carrboro City School 94 OSP 0568 
Cherry Hospital 



Charles F. Fields v. Cherry Hospital 

Gail Marie Rodgers Lincoln v. Cherry Hospital, Goldsboro, NC 27530 

Department of Commerce 

Ruth Daniel-Perry v. Department of Commerce 



94 OSP 0498 
94 OSP 0578 



93 OSP 0725 



Chess 



03/28/94 



93 EDC 0234 


Chess 


02/28/94 


93 EDC 0451 


Mann 


02/21/94 


93 EDC 0742 


Mann 


08/01/94 


94 EDC 0044 


Gray 


07/22/94 


94 EDC 0653 


West 


10/20/94 



Nesnow 



08/23/94 



93 OSP 0089 


Chess 


03/23/94 


93 OSP 0708 


Morrison 


03/16/94 


93 OSP 1393 


Gray 


03/24/94 


94 OSP 0748 


Gray 


08/17/94 



Reilly 



West 



05/23/94 



10/14/94 



Nesnow 10/12/94 



93 OSP 1097 Reilly 04/29/94 



Nesnow 09/14/94 

Becton 04/13/94 



West 10/06/94 



Morrison 06/15/94 
West 10/07/94 



Chess 03/04/94 



9:2 NCR 108 
9:11 NCR 863 

9:16 NCR 1326 



93 INS 0410 


Becton 


04/22/94 






93 INS 0929 


Morrison 


03/04/94 






94 INS 0028 


Gray 


10/25/94 


9:16 NCR 


1331 


94 INS 0345 


Gray 


08/23/94 


9:12 NCR 


945 



9:4 NCR 292 



9:3 NCR 211 



9:1 NCR 63 



1321 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Department of Correction 

Lcland K. Williams v. Department of Correction 

Elrcy Lewis v. North Central Area - Dept of Correction, Robert Lewis 

Steven R. Kellison v. Department of Correction 

Bert Esworthy v. Department of Correction 

James J. Lewis v. Department of Correction 

Merron Burrus v. Department of Correction 

Lewis Alsbrook v. Department of Correction, Morrison Youth Institution 

Junius C. Page v. Dept. of Correction, Secy. Franklin Freeman 

Richard Hopkins v. Department of Correction 

Alfred B. Hunt v. Department of Correction 

Charles Home v. Equal Emp. Opportunity Officer & Dept. of Correction 

Adrian E. Graham v. Intensive Probation/Parole 

Thomas W. Creswell, Lisa K. Bradley v. Department of Correction 

Thomas W. Creswell, Lisa K. Bradley v. Department of Correction 

Barry Lee Clark v. Department of Correction 

Edwaid E. Hodge v. Department of Correction 

Phyllis K. Cameron v. Department of Correction 

Eastern Correctional Institution 

Roy A. Keel & Zebedee Taylor v. Eastern Correctional Institution 
Roy A. Keel & Zebedee Taylor v. Eastern Correctional Institution 

Guilford Correctional Center 
Ann R. Williams v. Guilfoid Correctional Center #4440 

McDowell Correctional Center 

Michael Junior Logan v. Kenneth L. Setzer, McDowell Corr. Ctr. 

Cosmetic Art Examiners 

Mary Quaintance v. N.C. State Boaid of Cosmetic Art Examiners 

Department of Crime Control and Public Safety 

Don R. Massenburg v. Department of Crime Control & Public Safety 
Fred L. Kearney v. Department of Crime Control & Public Safety 
J.D. Booth v. Department of Crime Control & Public Safety 
Sylvia Nance v. Department of Crime Control & Public Safety 
Anthony R. Butler v. Highway Patrol 

Ruth P. Belcher v. Crime Control & Public Safety, State Highway Patrol 
Lewis G. Baker v. Crime Control & Public Safety, Office Adj. General 
William Smith v. State Highway Patrol 

Dorothea Dix Hospital 

Bettie Louise Boykin v. Dorothea Dix Hospital 

Durham County Health Department 

Lylla Denell Stockton v. Durham County Health Department 

East Carolina School of Medicine 

Gloria Dianne Burroughs v. ECU School of Medicine 
Lillie Mercer Atkinson v. ECU, Dept of Comp. Med., 

Dr. William H. Pryor Jr., Sheila Church 
William Lee Perkins v. ECU Sch of Med. Comp. Med. L. Blankenship, 

Tammy Barnes, Wm Pyroe 

Ehzaheth City State University 

James Charles Knox v. Elt2abeth City State University 



91 OSP 1287 


Chess 


02/22/94 


92 OSP 1770 


Bee ton 


05/24/94 


93 OSP 0283 


Chess 


06/15/94 


93 OSP 0711 


Chess 


04/21/94 


93 OSP 1121 


West 


08/31/94 


93 OSP 1 145 


West 


09/30/94 


93 OSP 1739 


West 


07/20/94 


93 OSP 1794 


Mann 


07/08/94 


94 OSP 0041 


Chess 


06/16/94 


94 OSP 0243 


Reilly 


04/20/94 


94 OSP 0244 


Nesnow 


06/16/94 


94 OSP 0261 


Morrison 


04/26/94 


94 OSP 0407** 


Chess 


09/28/94 


94 OSP 0408*" 


Chess 


09/28/94 


94 OSP 0437 


Chess 


09/12/94 


94 OSP 0829 


Nesnow 


09/15/94 


94 OSP 0896 


Nesnow 


10/27/94 



94 OSP 0160* 1 
94 OSP 0256** 



94 OSP 0428 



94 OSP 0546 



94 OSP 0372 



94 OSP 0831 



93 OSP 1780 



Nesnow 
Nesnow 



West 



Gray 



Chess 



Nesnow 



Gray 



07/20/94 
07/20/94 



06/22/94 



09/01/94 



06/14/94 



90 OSP 0239 


Chess 


04/28/94 


91 OSP 0401 


West 


03/18/94 


92 OSP 0953 


Morrison 


10/18/94 


92 OSP 1463 


Reilly 


03/21/94 


93 OSP 1079 


West 


08/30/94 


94 OSP 0190 


Gray 


09/06/94 


94 OSP 0572 


Mann 


07/12/94 


94 OSP 0816 


Morrison 


09/09/94 



09/28/94 



05/25/94 



93 OSP 0909 


Bee ton 


10/26/94 


94 OSP 0162 


Gray 


10/06/94 


94 OSP 0741 


West 


09/30/94 



9:6 NCR 



395 



94 OSP 0207 



Gray 



06/17/94 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1322 



CONTESTED CASE DECISIONS 



I 



AGENCY 

Employment Security Commission of North Carolina 

Rejeanne B. LeFrancois v. Employment Security Commission of N.C. 

Department of Environment, Health, and Natural Resources 

Steven P. Karasinski v. Environment, Health, and Natural Resources 

Division of Marine Fisheries 

William D. Nicely v. Environment, Health, & Natural Resources 

Fayetteville State University 

Roscoe L. Williams v. Fayetteville State University 

Department of Human Resources 

Inez Latta v. Department of Human Resources 

Charla S. Davis v. Department of Human Resources 

Rose Mary Taylor v. Department of Human Resources, Murdoch Center 

David R. Rodgere v. Jimmy Summerville, Stonewall JackBon School 

Dr. Patricia Sokol v. James B. Hunt, Governor and Human Resources 

Bruce B. Blackmon, M.D. v. DHR, Disability Determination Services 

Craven County Department of Social Services 

Shirley A. Holland v. Craven Cty. Dept. /Social Services & Craven Cty. 
Nettie Jane Godwin (Lawhorn) v. Craven Cty. DSS & Craven Cty. 
Violet P. Kelly v. Craven Cty. Dept. of Social Services & Craven Cty. 

Durham County Department of Social Services 

Belinda F. Jones v. Daniel Hudgins, Durham Cty Dept of SociaJ Svcs 
Ralph A. Williams v. Durham County Department of Social Services 

Haywood County Department of Social Services 
Dorothy Morrow v. Haywood County Department of Social Services 

Pamlico County Department of Social Senices 
Mrs. Dietra C. Jones v. Pamlico Department of Social Services 

Lee County Health Department 
James Shackleton v. Lee County Health Department 

Medical Assistance 

Delores Y. Bryant v. DHR, Division of Medical Assistance 
Delores Y. Bryant v. DHR, Division of Medical Assistance 



CASE 
NUMBER 



93 OSP 1069 



93 OSP 0940 



92 OSP 1454 



93 OSP 0487 



93 OSP 0728 

94 OSP 0167 



94 OSP 0186 



94 OSP 0251 



94 OSP 0344 



94 OSP 0991 
94 OSP 0992 



Mental Health/Mental Retardation 
Yvonne G. Johnson v. Blue Ridge Mental Health 93 OSP 1604 

Services for the Blind 
Donna L. Williams v. DHR, Division of Services for the Blind 93 OSP 1610 

Viike County Mental Health , Developmental Disabilities, and Substance Abuse Services 
Julia Morgan Brannon v. Wake County MH/DD/SAS 94 OSP 0214 

Justice 
Delores Y. Bryant v. Department of Justice 94 OSP 0984 



ALj 



West 



West 



Becton 



West 



Chess 
Reilly 



West 



Chess 



Gray 



Gray 
Gray 



Becton 



DATE OF PUBLISHED DECISION 
DECISION REGISTER CITATION 



04/08/94 



09/02/94 



05/04/94 



06/22/94 



93 OSP 0830 


Becton 


03/28/94 


93 OSP 1762 


Gray 


03/03/94 


93 OSP 0047 


Gray 


05/06/94 


94 OSP 0087 


Chess 


03/16/94 


94 OSP 0357 


Chess 


08/22/94 


94 OSP 0410 


Nesnow 


09/14/94 



93 OSP 1606 


Gray 


07/01/94 


93 OSP 1607 


Gray 


07/18/94 


93 OSP 1805 


Reilly 


07/05/94 



04/11/94 
09/13/94 



06/17/94 



08/09/94 



08/17/94 



10/27/94 
10/27/94 



03/18/94 



Morrison 10/25/94 



9:5 NCR 333 



9:9 NCR 655 



Reilly 04/14/94 




Gray 10/27/94 




November 15, 1994 


9:16 



1323 



NORTH CAROLINA REGISTER 



CONTESTED CASE DECISIONS 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



Public Instruction 

Elaine M. Sills v. Department of Public Instruction 

Real Estate Appraisal Board 

Earl Hansford Grubbs v. Appraisal Board 

Smoky Mountain Center 

Betty C. Bradley v. Smoky Mountain Center 

N.C. State University 

Laura K. Reynolds v. N.C. State University - Dept. of Public Safety 
Ashraf G. Khalil v. N.C.S.U. 

Department of Transportation 

Phyllis W. Newnam v. Department of Transportetion 

Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y Dept. of Transportetion 

Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y. Dept. of Transportetion 

Betsy Johnston Powell v. Department of Transportetion 

Arnold Craig v. Samuel Hunt, Secretary Department of Transportetion 

Susan H. Cole v. Department of Transportetion, Div. of Motor Vehicles 

Susan H. Cole v. Department of Transportetion, Div. of Motor Vehicles 

Clyde Lem Hairston v. Department of Transportetion 

Angela Trueblood Westmoreland v. Department of Transportetion 

Bobby R. Mayo v. Department of Transportetion 

Tony Lee Curtis v. Department of Transportetion 

Darrell H. Wise v. Department of Transportetion 

Henry C. Puegh v. Department of Transportetion 

Kenneth Ray Harvey v. Department of Transportetion 

Bobby R. Mayo v. Department of Transportetion 

Michael Bryant v. Department of Transportetion 

University of North Carolina at Chapel Hill 

William Paul Fearrington v. University of North Carolina at Chapel Hill 
Pautette M. McKoy v. University of North Carolina at Chapel Hill 
Paulette M. McKoy v. University of North Carolina at Chapel Hill 
Eric W. Browning v. UNC-Chapel Hill 
Beth Anne Millet R.N.-C v. UNC James A. Taylor Std Health Svc. 

University of North Carolina at Greensboro 

James S. Wilkinson v. UNCG Police Agency 

UNC Hospitals 

Barry Alonzo Nichols v. UNC Hospitals Central Dist. Sect. 

Wake County School System 

Lula Mae Freeman v. Wake County School System 

The WMtaker School 

Dwayne R. Cooke v. The Whitaker School 

Winston-Salem State University 

David Phillip Davis v. Winston-Salem State University 

Tonny M. Jarrett v. Winston-Salem State University Campus Police 



94 OSP 0781 



94 OSP 0753 



93 OSP 1505 



92 OSP 0828 

93 OSP 1666 



Gray 



Nesnow 



Bee ton 



Morgan 
Nesnow 



10/06/94 



08/24/94 



09/26/94 



05/26/94 
09/19/94 



91 OSP 0905 


Reilly 


10/19/94 


92 OSP 0380^ 


Bee ton 


10/24/94 


92 OSP 0792* 7 


Bee ton 


10/24/94 


93 OSP 0925 


Morrison 


05/03/94 


94 OSP 0800 


Nesnow 


09/26/94 



93 OSP 0850 



94 OSP 0509 



94 OSP 0576 



94 OSP 0328 



93 OSP 0947 
93 OSP 0953 



Che 



08/22/94 



Morrison 06/15/94 



Morrison 06/28/94 



Che 



Reilly 
Reilly 



06/02/94 



09/28/94 
09/12/94 



9:14 NCR 1141 



92 OSP 1799 


Morgan 


08/11/94 






93 OSP 0297* 1 


Morrison 


03/10/94 


9:1 NCR 


60 


93 OSP 0500* 1 


Morrison 


03/10/94 


9:1 NCR 


60 


93 OSP 0550 


Morrison 


03/28/94 






93 OSP 0586 


Nesnow 


07/11/94 






93 OSP 0908 


Morrison 


07/15/94 






93 OSP 0908 


Morrison 


10/07/94 






93 OSP 0944 


Chess 


02/28/94 






93 OSP 1001 


Morrison 


09/30/94 


9:14 NCR 


1136 


93 OSP 1004 


Nesnow 


09/01/94 






93 OSP 1037 


Reilly 


08/26/94 






93 OSP 1353 


Gray 


07/26/94 






93 OSP 1710 


Nesnow 


05/24/94 






94 OSP 0423 


Morrison 


08/17/94 






94 OSP 0632 


Gray 


08/23/94 






94 OSP 0728 


Chess 


08/15/94 







9:5 NCR 



342 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1324 



CONTESTED CASE DECISIONS 



■ 



AGENCY 



CASE 
NUMBER 



ALJ 



DATE OF 
DECISION 



PUBLISHED DECISION 
REGISTER CITATION 



STATE TREASURER 

Retirement Systems Division 

Molly Wiebenson v. Bd./Trustees/Teachem* & Stale Employees* Ret. Sys. 
Judith A. Dorman v. Bd. /Trustees/Teachers* & State Employees* Ret. Sys. 
Nathan Fields v. Bd./Trustees/TeacheiB' & State Employees' Ret. Sys. 
John C. Russell v. Bd./Trustees/Teachem' & State Employees' Ret. Sys. 
Marion Franklin Howell v. Teachera' & State Employees' Retirement Sys. 
Robert A. Slade v. Bd./Trustees/N.C. Local Govtl. Emp. Ret. System 
Connie B. Grant v. Bd./Trustees/TeacheiB' & State Employees* Ret. Sys. 
James E. Walker, Ind. & Admin for the Estate of Sarah S. Walker v. Bd./ 

Trustees/N.C. Local Govt. Emp. Ret. System 
Elizabeth M. Dudley v. Bd./Trustees/TeacheiB* & State Emps' Ret. Sys. 
Kenneth A. Glenn v. Bd. /Trustees/Teachers' & St Employees' Ret. Sys. 
Joseph Fuiton v. Bd. /Trustees /Teach era' & State Employees' Ret. Sys. 
Deborah W. Stewart v. Bd. /Trustees /Teach era' & State Employees' 

Ret. Sys. and Anthony L. Hope & Derrick L. Hope 

TRANSPORTATION 



92 DST 0015 


Morgan 


05/26/94 


9:6 NCR 


403 


92 DST 0223 


Morgan 


08/11/94 






93 DST 0161 


Morrison 


05/18/94 






93 DST 0164 


West 


03/07/94 






93 DST 0475 


Nesnow 


08/04/94 


9:12 NCR 


941 


93 DST 0785 


Bee ton 


03/18/94 


9:1 NCR 


68 


93 DST 0883 


Chess 


06/15/94 






93 DST 1054 


Bee ton 


05/31/94 


9:7 NCR 


490 


93 DST 1474 


Nesnow 


03/28/94 






93 DST 1612 


Morrison 


05/18/94 






93 DST 1731 


Bee ton 


05/25/94 






94 DST 0045 


Nesnow 


07/25/94 


9:10 NCR 


768 



Taylor & Murphy Construction Co. , Inc. v. Department of Transportation 93 DOT 1404 
UNIVERSITY OF NORTH CAROLINA 



Chess 



08/24/94 



Heather Anne Porter v. State Residence Committee 
Nixon Omolodun v. UNC Physicians and Associates 



92 UNC 0799 
94 UNC 0295 



Nesnow 
Chess 



08/23/94 
06/27/94 



1325 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WARREN 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

94 EDC 0653 



WAYNE HOGWOOD, 
Petitioners, 



NORTH CAROLINA DEPARTMENT OF 
PUBLIC INSTRUCTION, 

Respondent, 



RECOMMENDED DECISION 



This contested case was heard by Administrative Law Judge, Thomas R. West, on September 7, 1994, 
in Raleigh, North Carolina. 

No witnesses were presented. Instead, the contested case was presented on the basis of: 

1. "Stipulation of Facts" filed on August 19, 1994, consisting often (10) stipulations; 

2. "Memorandum in Support of Petitioner's Motion for Directed Verdict" filed September 7, 
1994; and 



3. 



"Memorandum of Law" filed by Respondent on September 7, 1994. 



For Petitioner: 



For Respondent: 



APPEARANCES 

Thomas M. Stern 

Ferguson, Stein, Wallas, Adkins, 

Gresham & Sumter, P. A. 

Suite 2 - Franklin Suites 

312 West Franklin Street 

Chapel Hill, North Carolina 27516 

Barbara A. Shaw 

Assistant Attorney General 

North Carolina Department of Justice 

Post Office Box 629 

Raleigh, North Carolina 27602-0629 

STIPULATED FACTS 



The facts, stipulated by the parties, are as follows: 

1. Wayne Hogwood is the holder of teaching certificate No. 139-46-7104 issued by the State Board of 

Education. Mr. Hogwood is certified in the areas of elementary education, middle grade social 
studies, emotionally handicapped and provisionally certified in the areas of preschool handicapped, 
mentally handicapped and learning disabled. 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1326 



CONTESTED CASE DECISIONS 



2. Wayne Hogwood was employed as a probationary teacher in the Warren County School System for 
the 1991-92, 1992-93 and 1993-94 school years. He taught special education students all three years. 

3. On March 22, 1994, the Charlotte Observer newspaper ran an article on teachers who had been 
convicted of crimes. The article included a piece on Wayne Hogwood, stating that in 1981 he had 
been convicted of assaulting his then girlfriend with a deadly weapon, inflicting serious injury. 

4. In 1980, in Nash County Superior Court case 80-CRS-10431, Mr. Hogwood was charged with assault 
with a deadly weapon with intent to kill inflicting serious injury for shooting his then girlfriend with 
a .38 caliber pistol. Mr. Hogwood was convicted of assault with a deadly weapon, inflicting serious 
injury, in 1981. 

5. Mr. Hogwood has not misrepresented any information about his conviction to the Warren County 
School System, nor to DPI (Department of Public Instruction). The Warren County School System 
did not ask Mr. Hogwood if he had been convicted of a crime when he was initially employed. The 
only time DPI requested Mr. Hogwood to disclose prior convictions was in 1978 when he was 
initially certified. Mr. Hogwood disclosed his conviction of assault with a deadly weapon to the 
Warren County School System for the first time in March 1994 when the article appeared in the 
Charlotte Observer. DPI did not know about Mr. Hogwood's conviction until the newspaper article 
appeared in the Charlotte Observer. 

6. The last week of March, 1994, Mr. Hogwood tendered his resignation from the Warren County 
School System, effective the end of the 1993-94 school year. He continued teaching until the end of 
such school year. 

7. Mr. Hogwood's past teaching performance in the Warren County School System has been satisfactory 
and is not an issue in this administrative hearing. 

8. As a result of the Charlotte Observer article, DPI looked into this matter and confirmed that Mr. 
Hogwood had been convicted of assault with a deadly weapon, inflicting serious injury, in 1981. A 
true and accurate copy of the Judgment and Commitment entered in Nash County Superior Court 
evidencing Mr. Hogwood's 1981 felony conviction is attached hereto as Exhibit A. 

9. DPI seeks to revoke Mr. Hogwood's certificate because of his conviction and/or the conduct upon 
which the conviction was based. 

10. The only issue before the Office of Administrative Hearings is whether the 1981 conviction for assault 
with a deadly weapon inflicting serious injury constitutes a ground for revocation under 16 NCAC 
6C .0312(a)(3) and (8). 

CONCLUSIONS OF LAW 

Based upon a careful review of the stipulated facts, the Administrative Law Judge reaches the 
following conclusions of law: 

16 NCAC 6C .0312(a)(3) of the North Carolina Administrative Code states: 

The SBE (State Board of Education) may deny an application for certification or may suspend 
or revoke a certificate issued by the Department only for the following reasons: ... (3) 
conviction or entry of a plea of no contest, as an adult, of a crime if there is a reasonable and 
adverse relationship between the underlying crime and the continuing ability of the person 
to perform any of his/her professional functions in an effective manner; . . . 



1327 NORTH CAROLINA REGISTER November 15, 1994 9:16 



CONTESTED CASE DECISIONS 



16 NCAC 6C .0312(a)(3) (emphasis added). DPI and the Superintendent of Public Instruction are agents of 
the SBE for purposes of this case. 

The administrative code requires the SBE to satisfy a two-part test before it may revoke a teacher's 
license based on the conviction of a crime. First, the SBE must establish that the teacher has, as an adult, 
been convicted (or has pled no contest) to a crime. Second, the SBE must establish that the crime bears an 
adverse relationship to the teacher's continuing ability to perform his/her job effectively. Thus, the crime 
itself does not constitute the sole basis for revocation; there must be additional information which indicates 
that there was an adverse impact on the teacher's ability to teach. 

16 NCAC 6C .0312(a)(8) is not applicable in this case. This subsection authorizes the SBE to revoke 
a teacher's certificate for "any other illegal, unethical, or lascivious conduct. ..." This subsection is a catch- 
all provision which is intended to address conduct not otherwise covered by one of the preceding seven 
subsections; thus, it is subsumed by subsection (a)(3). 

Applying section .0312(a)(3), the factfinder must determine if there are facts which indicate that a 
teacher's conviction impacts on his/her continuing ability to teach. In reviewing the Board's decision to 
dismiss a career teacher, the North Carolina Supreme Court held in Faulkner y. New Bern-Craven Bd. of 
Educ. that the reviewing court must apply the "whole record" test and consider all testimony presented to the 
board. Faulkner v. New Bern-Craven Bd. of Educ . 311 N.C. 42, 316 S.E.2d 281 (1984), citing Thompson 
y. Wake Co. Bd. of Educ , 292 N.C. 406, 233 S.E.2d 538 (1977). In Thompson , the Supreme Court held 
that the "whole record" test requires the court to consider both the evidence which justifies the Board's result 
and that which contradicts it. Thompson , 292 N.C. at 410, 233 S.E.2d at 541. In applying the "whole 
record" test in this case, the undersigned may only consider the ten facts stipulated above. 

Respondent cites Burrow y^ Randolph Co. Bd. of Educ for the proposition that allowing a teacher 
to teach who has been convicted of a crime could lead impressionable children to believe that such acts are 
proper. The Burrow court applied the "whole record" test in determining whether the instructor should have 
her license revoked, and in reviewing all information presented, the Court held that there were facts sufficient 
for the Board to revoke the plaintiff's certificate. The court held that the totality of facts showed a reasonable 
and adverse relationship between the crime and plaintiffs continuing ability to perform effectively as a 
teacher. Burrow y, Randolph Co. Bd. of Educ . 61 N.C. App. 619, 628, 301 S.E.2d 704, 709 (1973). 

Upon careful consideration of the facts in Burrow , it is easy to distinguish it from this case. In 
Burrow , the board noted that the plaintiff, while on work release from an active sentence for the shooting 
death of her husband, attempted to report for work at a senior high school without notifying the school. 
However, the local media had been notified to cover Plaintiff's return. In addition, Plaintiff's return without 
notice was purposefully calculated to embarrass school officials. Clearly, this is information sufficient to 
fulfill the second prong of .0312(a)(3) — that Plaintiff's conduct had a reasonable and adverse effect on her 
ability to continue teaching. 

Burrow does not compel the result in this case, however. Petitioner was not serving an active 
sentence at the time of the Charlotte Observer article. His conviction, although for a serious crime, was not 
for a homicide. Almost a decade had passed since Petitioner had completed his probation. Petitioner did not 
receive an active sentence. Petitioner behaved responsibly and with dignity by resigning when his conviction 
became public, rather than by creating a news story for personal reasons. There is no evidence that 
Petitioner's ability to teach was adversely affected. The evidence is to the contrary since the Warren County 
School System retained Petitioner for the balance of the 1994 school year. 

Generally, a government employer cannot dismiss an employee for off-duty wrongful conduct unless 
the employer can demonstrate a reasonable relationship between the wrongful conduct and the employee's 
continuing ability to perform his or her job. In Eury y^ North Carolina Employment Comm'n , the North 
Carolina Court of Appeals stated that where the agency action was based upon off-duty criminal conduct, the 
agency: 



9:16 NORTH CAROLINA REGISTER November 15, 1994 1328 



CONTESTED CASE DECISIONS 



must demonstrate that the dismissal is supported by the existence of a rational nexus between 
the type of criminal conduct committed and the potential adverse impact on the employee's 
future ability to perform for the agency. 

Eury v. North Carolina Employment Comm'n , No. 9310SC935 (Filed August 2, 1994). 

The Court sets forth seven factors which an agency may consider in determining whether such a 
rational nexus exists. Those factors are as follows: 

1) The degree to which, if any, the conduct may have adversely affected clients or colleagues; 

2) The relationship between the type of work performed by the employee for the agency and the 
type of criminal conduct committed; 

3) The likelihood of recurrence of the questioned conduct and the degree to which the conduct 
may affect work performance, work quality, and the agency's good will and interests; 

4) The proximity or remoteness in time of the conduct to the commencement of the disciplinary 
proceedings; 

5) The extenuating or aggravating circumstances, if any, surrounding the conduct; 

6) The blameworthiness or praiseworthiness of the motives resulting in the conduct; and 

7) The presence or absence of any relevant factors in mitigation. 

Eury at 29-30. 

There is no evidence in the record that students, colleagues, or parents have been adversely affected 
by Petitioner's conduct. There is no evidence that Petitioner's assaultive conduct is likely to recur. The only 
evidence regarding work performance is that it is satisfactory. The crime at issue occurred more than a 
decade ago and Petitioner successfully completed probation almost a decade ago. There is no evidence of 
extenuating or aggravating circumstances. There is no evidence of Petitioner's motive for shooting his 
girlfriend. There is no evidence of aggravating or mitigating factors. 

Although several of these guidelines do not impact on whether Petitioner's certificate should be 
revoked, the second and third guidelines do impact on whether Petitioner's crime bore a reasonable and 
adverse relationship with his continuing ability to perform his professional functions in an efficient manner. 

Allowing a teacher who has been convicted of assault with a deadly weapon to continue teaching, 
particularly when that weapon was a handgun, would have negative ramifications for DPI. The Charlotte 
Observer story is proof of that. Parents used to worry that their child might get hurt on the way to school 
or socked in the eye by a bully on the playground. Now parents must worry about their children being shot 
and killed. 

A primary function of government in North Carolina is to guard and maintain the people's right to 
a free public education. N.C. Const., Art. I § 15. Parents rely on school systems to protect their children 
from violence. If DPI certified teachers who have been convicted of assault with a deadly weapon, North 
Carolinians would tend to think that their government is not serious about protecting children in North 
Carolina schools, but instead scoffs at the problem and contributes to the problem of violence in schools. 

Such an impact would most certainly affect the "good will and interests" which the agency tries to 
project and would interfere with an effective system of public education. Therefore, while Petitioner may 
succeed on several other guidelines, the application of these two factors is sufficient to establish a rational 
nexus and therefore is sufficient for the undersigned to find that there is a reasonable and adverse relationship 



1329 NORTH CAROLINA REGISTER November 15, 1994 9:16 



CONTESTED CASE DECISIONS 



between Petitioner's conviction and his continuing ability to perform his professional functions in an effective 
manner. 

RECOMMENDED DECISION 

Based on the foregoing, it is recommended that the relief sought by the Petitioner for a Contested 
Case Hearing be DENIED. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the Department of Public 
Instruction. 

This the 20th day of October, 1994. 



Thomas R. West 
Administrative Law Judge 



9:16 NORTH CAROLINA REGISTER November 15, 1994 1330 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 
COUNTY OF WAKE 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

94 INS 0028 



SANDRA TATUM, 
Petitioners, 



STATE OF NORTH CAROLINA TEACHERS' 
AND STATE EMPLOYEES' COMPREHENSrVE 
MAJOR MEDICAL PLAN, 

Respondent, 




This matter was heard before Beecher R. Gray, administrative law judge, on August 16, 1994 in 
Raleigh, North Carolina. Respondent filed a proposed recommended decision and brief on August 31, 1994. 
Petitioner filed a proposed recommended decision and brief on September 14, 1994. 

APPEARANCES 

Petitioner: Richard W. Rutherford, Esq. 
Respondent: Evelyn B. Terry, Esq. 

ISSUES 

1 . Whether Respondent's denial of coverage for Petitioner's bilateral salpingo-oophorectomy on the basis 
that it was prophylactic in nature, and thereby excluded from coverage under the State of North Carolina 
Teachers' and State Employees' Comprehensive Major Medical Plan (Plan), is proper. 

2. Whether Respondent acted erroneously, failed to use proper procedure, or failed to act as required 
by law and thereby violated Petitioner's due process rights by applying Chapter 135, Article 3, of the General 
Statutes of North Carolina in a manner such that Respondent initially paid Petitioner's health care providers 
under Chapter 135 and five months later forced a recoupment of those payments without benefit of pre-event 
notice and hearing. 

EXHTBrrs 

The parties stipulated on the record that the following exhibits would be offered into the evidence 
without objection: Joint exhibits 1 and 2; Petitioner's exhibits A-K; and Respondent's exhibits 1-3 and 5-11. 
The expert testimony of Dr. W. Ronald Neal for Petitioner and Dr. Allen Joseph McBride for Respondent 
was received by stipulation of the parties in the form of video depositions as Petitioner's exhibits J and K, 
respectively. Each of these exhibits was offered and admitted into evidence. 

FINDINGS OF FACT 

1. Official notice was requested and taken of Article 3 of Chapter 135 of the North Carolina General 
Statutes; the due process clause of the Fifth and Fourteenth Amendments to the United States Constitution; 
and the law of the land clause, Article 1, Section 19, of the Constitution of the State of North Carolina. 

2. The parties received notice of hearing by certified mail more than 15 days prior to the hearing and 
stipulated on the record that notice was proper in all respects. 



1331 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



CONTESTED CASE DECISIONS 



3. Petitioner is an employee of the Division of Facility Services, Department of Human Resources, State 
of North Carolina. She is, and was at all times pertinent, covered by the Teachers' and State Employees' 
Comprehensive Major Medical Plan of the State of North Carolina (the Plan). 

4. Respondent and its employees, trustees, and administrators, are responsible for making available a 
comprehensive major medical plan for the exclusive benefit of the employees and their dependents and retired 
employees of the State of North Carolina. The trustees and administrators act as fiduciaries of the Plan. The 
Plan was created under the provisions of Chapter 135, Article 3 of the General Statutes of North Carolina. 

5. Petitioner's mother was diagnosed in the 1960's with cervical cancer. In 1984 Petitioner's mother 
was diagnosed with ovarian cancer. 

6. In about 1989, Dr. Ronald Neal, Petitioner's Obstetrician-Gynecologist, advised Petitioner that 
prevailing medical data and opinion indicated that she should undergo surgery to remove her ovaries since her 
mother had experienced both cervical and ovarian cancer. Petitioner was 50 years old at the time and 
previously had undergone a hysterectomy. She had experienced ovarian failure. Dr. Neal's opinion was that 
Petitioner had a 50% probability of contracting ovarian cancer. Dr. Neal further advised that many women 
who contract ovarian cancer are dead within one year and that 90% are dead within 5 years. 

7. There are no good early warning tests which can be used to detect ovarian cancer. The expert 
witnesses for both parties agree on this fact. Seventy-five percent (75%) of women who are detected with 
ovarian cancer, according to Petitioner's expert, Dr. Neal, and Respondent's expert, Dr. McBride, are at stage 
3 or 4, the disease having metastasized to the lungs or liver. Those women who present positive for ovarian 
cancer usually cannot be saved. The treatment requires hospitalizations with chemotherapy and possibly 
irradiation, is extremely expensive, and is debilitating to the patient. 

8. The experts for both parties agree that a bi-lateral salpingo-oophorectomy in this Petitioner's case was 
medically necessary and good medical practice. 

9. Petitioner obtained a preadmission certification from Respondent on June 30, 1992 for admission to 
Moses Cone Women's Hospital for removal of her ovaries and fallopian tubes. The preadmission certification 
contains the following statement: ADMITTING DIAGNOSIS: "Pelvic pain/R/O/Ovarian Cancer". This 
statement indicates that Petitioner's admission to Moses Cone Women's Hospital was approved and that the 
patient, although presenting with pelvic pain, was not considered to have active ovarian cancer. 

10. On August 6, 1992, Petitioner underwent a bi-lateral salpingo-oophorectomy performed by Dr. Neal 
in the Moses Cone Women's Hospital in Greensboro. Petitioner developed internal bleeding complications 
the day after surgery and obtained Respondent's approval, in the form of another preadmission certification, 
for two (2) extra days in the hospital. 

11. Respondent utilizes preadmission certifications to indicate that an inpatient setting is appropriate for 
the procedure to be performed. It does not use the preadmission certification process to indicate its approval 
of the procedure or its intent to pay for the procedure. 

12. Petitioner's medical expenses for the surgery totalled $8,461 .52. Respondent paid $5,391 .82 directly 
to Petitioner's medical vendors after calculating allowable costs and copayment. 

13. Respondent notified Petitioner by letter on February 23, 1993, approximately five months after it paid 
the claims, that it was revoking its approval of Petitioner's claim for benefits and intended to seek refunds 
from the vendors already paid. Respondent indicated that it was denying Petitioner's claim because she had 
undergone a prophylactic bilateral salpingo-oophorectomy with no clinical indications of ovarian cancer either 
pre-op or post-op. 

14. Petitioner requested and received an internal review of her claim by Respondent. As part of this 
review, Petitioner's claim was the subject of a physician consultant review conducted by Dr. Allen Joseph 



9:16 NORTH CAROLINA REGISTER November 15, 1994 1332 



CONTESTED CASE DECISIONS 



McBride, Senior Director of Medical Affairs, Blue Cross Blue Shield of North Carolina, Respondent's claims 
processing contractor. Dr. McBride confirmed the increased risk of ovarian cancer present because of the 
hereditary factor but denied payment for what he regarded as a preventive procedure because Petitioner 
exhibited no symptoms of disease. 

1 5 . After this review, Respondent demanded and received refunds from every medical vendor it had paid 
in Petitioner's case. 

16. Before giving his medical opinion to revoke coverage for this procedure, Dr. McBride reviewed a 
letter from Dr. Neal supporting his medical decision to operate; the hospital's operative report; and Article 
3 of Chapter 135 of the General Statutes of North Carolina. His opinion that coverage should be revoked was 
based solely upon his construction of the provisions of the General Statutes involved, principally G.S. 135- 
40.7(5), (12), and (16). 

17. Dr. McBride did not know about Petitioner's presentation with pelvic pain as recorded as the 
admitting diagnosis on both preadmission certifications issued by Respondent. Dr. McBride's testimony in 
this hearing is that, had he known about the pelvic pain admitting diagnosis, he would have ordered 
Petitioner's outpatient medical records for his review. An offer to supply the Plan with Petitioner's clinical 
records was made by Dr. Neal in his letter to the Plan, dated September 28, 1992, which Dr. McBride had 
before him during his review. Dr. McBride did not request any of Petitioner's clinical records. 

18. In the absence of knowledge about Petitioner's preadmission certification admitting diagnosis of pelvic 
pain and her extended clinical record, Dr. McBride does not know whether Petitioner's claim should be paid 
as a diagnostic study under G.S. 135-40.7(12) where the covered individual had a definite symptomatic 
condition of disease under G.S. 135-40. 7(12)(ii). 

19. Following the internal review of Petitioner's appeal, Respondent notified her, through counsel, that 
Respondent had entered a binding decision on or about October 20, 1993 affirming its denial of her claim and 
appeal. 

20. G.S. 135-40.4 provides, in pertinent part: 

In the event a covered person, as a result of accidental bodily injury, disease or pregnancy 
incurs covered expenses, the Plan will pay benefits up to the amounts described in G.S. 135- 
40.5 through G.S. 135-40.9. 
N.C. Gen. Stat. §135-40. 4(a) (Cum. Supp. 1993). 

21. G.S. 135-40.7(5) provides, in pertinent part: 

The following shall in no event be considered covered expenses nor will benefits described 
in G.S. 135-40.5 through G.S. 135-40. 11 be payable for: 

Charges for any care, treatment, services or supplies other than those which are certified by 
a physician who is attending the individual as being required for the medically necessary 
treatment of the injury or disease. This subdivision shall not be construed, however, to 
require certification by an attending physician for a service provided by an advanced practice 
registered nurse acting within the nurse's lawful scope of practice, subject to the limitations 
of G.S. 135-40.6(10). 
N.C. Gen. Stat. §135-40.7(5) (Cum. Supp. 1993). 

22. G.S. 135-40.7(12) provides, in pertinent part: 

The following shall in no event be considered covered expenses nor will benefits described 
in G.S. 135-40.5 through G.S. 135-40. 11 be payable for: 



1333 NORTH CAROLINA REGISTER November 15, 1994 9:16 



CONTESTED CASE DECISIONS 



Charges incurred for any medical observations or diagnostic study when no disease or injury 
is revealed unless proof satisfactory to the Claims Processor is furnished that (i) the claim 
is in order in all other respects, (ii) the covered individual had a definite symptomatic 
condition of disease or injury other than hypochondria, and (iii) the medical observation and 
diagnostic studies concerned were not undertaken as a matter of routine physical examination 
or health checkup as provided in G.S. 135-40. 6(8)s. 
N.C. Gen. Stat. §135-40.7(12) (Cum. Supp. 1993). 

23. G.S. 135-40.7(16) provides, in pertinent part: 

The following shall in no event be considered covered expenses nor will benefits described 
in G.S. 135-40.5 through G.S. 135-40. 11 be payable for: 

Costs denied by the Claims Processor as part of its overall program of claim review and cost 

containment. 

N.C. Gen. Stat. §135-40.7(16) (Cum. Supp. 1993). 

24. Respondent is authorized to recover disbursements made under the Plan that are not in accordance 
with Article 3 of Chapter 135. General Statutes Section 135-39.5 provides, in pertinent part: 

The Executive Administrator and Board of Trustees of the Teachers' and State Employees' 
Comprehensive Major Medical Plan shall have the following powers and duties: 

(21) [supervising the payment of claims and all other disbursements under this 
Article, including the recovery of any disbursements that are not made in accordance with 
the provisions of this Article. G.S. 135-39.5(21) (Cum. Supp. 1993). 

25. Respondent also is authorized to issue rules and regulations to implement the provisions of Article 
3 of Chapter 135: G.S. 135-39.8 (Cum. Supp. 1993) provides, in pertinent part: 

The Executive Administrator and Board of Trustees may issue rules and regulations to 
implement Parts 2 and 3 of this Article. 

26. Respondent has not issued rules or regulations implementing Parts 2 and 3 of Article 3 of Chapter 
135 of the General Statutes of North Carolina. 

CONCLUSIONS OF LAW 

Based upon the foregoing findings of fact, I make the following conclusions of law. 

1 . The parties are properly before the Office of Administrative Hearings. 

2. Petitioner is a state employee and a covered person under the Plan, within the meaning of G.S. 135- 
40.2. 

3. A bilateral salpingo-oophorectomy for a female of Petitioner's age and reproductive status whose 
mother has been diagnosed with both cervical and ovarian cancer is the current recommended and accepted 
medically necessary treatment, within the meaning of G.S. 135-40.7(5), for the disease of ovarian cancer even 
though clinical manifestations of the disease are not present. No rule of the Respondent and no statute of the 
State of North Carolina specifically exclude or disapprove the procedure performed under the facts of this 
case. 

4. The charges for care, treatment, services, and supplies certified by Petitioner's attending physician 
as necessary for the salpingo-oophorectomy performed by him on Petitioner are covered expenses under the 
Plan for which benefits described in G.S. 135-40.5 through G.S. 135-40. 1 1 are payable. Because this surgical 



9:16 NORTH CAROLINA REGISTER November 15, 1994 1334 



CONTESTED CASE DECISIONS 



procedure is the accepted medically necessary treatment for ovarian cancer, regarding this Petitioner under 
her particular circumstances, her certified expenses are not excluded by the exclusions and limitations of G.S. 
135-40.7 or any other provision of Chapter 135, Article 3. 

5. It cannot be concluded as a matter of law that the present statutory scheme, adhered to by Respondent 

through initial approval and disbursement of Plan benefits to Petitioner, followed by revocation of benefits, 
recovery of disbursements, and affirmance of revocation upon internal appeal, caused Respondent to act 
erroneously, fail to use proper procedure, or fail to act as required by law. The facts and the law in this 
contested case do not compel a conclusion that a post-recovery of disbursements contested case hearing or a 
post-denial of claim contested case hearing are violations of Petitioner's due process rights and constitute 
improper, illegal, or erroneous agency action. 

RECOMMENDED DECISION 

Based upon the foregoing findings of fact and conclusions of law, it is hereby recommended that 
Respondent reverse its decision revoking approval of Petitioner's claim for benefits under the Plan for the bi- 
lateral salpingo-oophorectomy performed by Dr. Neal upon her on August 6, 1993. This recommended 
decision is based upon the fact that it is the accepted medically necessary treatment of the disease of ovarian 
cancer, in the current absence of methods for early detection, for a 50 year old patient whose mother has had 
two primary gynecologic malignancies, including ovarian cancer, and whose ovaries have failed. 

ORDER 

It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative 
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute 
150B-36(b). 

NOTICE 

The agency making the final decision in this contested case is required to give each party an 
opportunity to file exceptions to this recommended decision and to present written arguments to those in the 
agency who will make the final decision. G.S. 150B-36(a). 

The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to 
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings. 

The agency that will make the final decision in this contested case is the North Carolina Teachers' 
and State Employees' Comprehensive Major Medical Plan. 



This the 25th day of October, 1994. 



Beecher R. Gray 
Administrative Law Judge 



1335 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



Ihe North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these, 
titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major 
department in the North Carolina executive branch of government has been assigned a title number. 
Titles are further broken down into chapters which shall be numerical in order. The other two, 
subchapters and sections are optional subdivisions to be used by agencies when appropriate. 



TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


2 


Agriculture 


Architecture 


2 


3 


Auditor 


Auctioneers 


4 


4 


Commerce 


Barber Examiners 


6 


5 


Correction 


Certified Public Accountant Examiners 


8 


6 


Council of State 


Chiropractic Examiners 


10 


7 


Cultural Resources 


General Contractors 


12 


8 


Elections 


Cosmetic Art Examiners 


14 


9 


Governor 


Dental Examiners 


16 


10 


Human Resources 


Dietetics/Nutrition 


17 


11 


Insurance 


Electrical Contractors 


18 


12 


Justice 


Electrolysis 


19 


13 


Labor 


Foresters 


20 


14A 


Crime Control & Public Safety 


Geologists 


21 


15A 


Environment, Health, and Natural 


Hearing Aid Dealers and Fitters 


22 




Resources 


Landscape Architects 


26 


16 


Public Education 


Landscape Contractors 


28 


17 


Revenue 


Marital and Family Therapy 


31 


18 


Secretary of State 


Medical Examiners 


32 


19A 


Transportation 


Midwifery Joint Committee 


33 


20 


Treasurer 


Mortuary Science 


34 


*21 


Occupational Licensing Boards 


Nursing 


36 


22 


Administrative Procedures 


Nursing Home Administrators 


37 


23 


Community Colleges 


Occupational Therapists 


38 


24 


Independent Agencies 


Opticians 


40 


25 


State Personnel 


Optometry 


42 


26 


Administrative Hearings 


Osteopathic Examination & Reg. (Repealed) 


44 






Pharmacy 


46 






Physical Therapy Examiners 


48 






Plumbing, Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Practicing Psychologists 


54 






Professional Engineers & Land Surveyors 


56 






Real Estate Appraisal Board 


57 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Speech & Language Pathologists & Audiologists 


64 






Therapeutic Recreation Certification 


65 






Veterinary Medical Board 


66 



Note: Title 21 contains the chapters of the various occupational licensing boards. 



9:16 



NORTH CAROLINA REGISTER 



November 15, 1994 



1336 



CUMULATIVE INDEX 



Pages 



CUMULATIVE INDEX 

(April 1994 - March 1995) 



Issue 



1 - 75 1 - April 

76 - 122 2 - April 

123 - 226 3 - May 

227 - 305 4 - May 

306 - 348 5 - June 

349 - 411 6 - June 

412 - 503 7 - July 

504 - 587 8 - July 

588 - 666 9 - August 

667 - 779 10 - August 

780 - 876 11 - September 

877 - 956 12 - September 

957 - 1062 13 - October 

1063 - 1151 14 - October 

1152 - 1241 15 - November 

1242 - 1339 16 - November 



Unless otherwise identified, page references in this Index are to proposed rules. 



ADMINISTRATION 

State Employees Combined Campaign, 878 

AGRICULTURE 

Plant Industry, 127, 1245 

COMMERCE 

Alcoholic Beverage Control Commission, 423 
Banking Commission, 884 
Energy Division, 4 

COMMUNITY COLLEGES 

Community Colleges, 1305 

CORRECTION 

Prisons, Division of, 1157 

CRIME CONTROL AND PUBLIC SAFETY 

State Highway Patrol, Division of, 243 

CULTURAL RESOURCES 

Arts Council, 960 

ENVTRONMENT, HEALTH, AND NATURAL RESOURCES 

Coastal Management, 443, 825, 1185, 1283 
DEM/ Air Quality, 80, 805 
Departmental Rules, 254 



1337 



NORTH CAROLINA REGISTER 



November 15, 1994 



9:16 



CUMULATIVE INDEX 



Environmental Management, 81, 258, 352, 616, 959, 1261 

Health Services, 323, 370, 445, 834, 913, 1000, 1112 

Marine Fisheries Commission, 820, 989, 1109, 1244 

Mining Commission, 442 

NPDES Permit, 3, 232 

Parks and Recreation, 1194 

Radiation Protection Commission, 678 

Solid Waste Management, 171, 364, 1287 

Water Resources, 165, 255 

Wildlife Resources Commission, 38, 42, 84, 358, 830, 910, 999, 1285 

Wildlife Resources Commission Proclamation, 125 

FINAL DECISION LETTERS 

Voting Rights Act, 2, 312, 506, 594, 958, 1243 

GENERAL STATUTES 

Chapter 150B, 780 

GOVERNOR/LT. GOVERNOR 

Executive Orders, 1, 123, 227, 306, 349, 412, 504, 588, 667, 877, 957, 1152, 1242 

HUMAN RESOURCES 

Child Day Care Commission, 10 

Children's Services, 136 

Day Care Rules, 148 

Departmental Rules, 668 

Facility Services, 4, 128, 423, 509, 668, 890 

Medical Assistance, 318, 440, 513, 597, 964, 1155, 1247 

Medical Care, 1161 

Mental Health, Developmental Disabilities and Substance Abuse Services, 13, 24, 36, 313, 430, 961, 

1063 
Social Services, 136, 595, 802, 1167 
Vocational Rehabilitation Services, 434 

INDEPENDENT AGENCIES 

State Health Plan Purchasing Alliance Board, 99, 1030 

INSURANCE 

Actuarial Services Division, 1072, 1257 

Agent Services Division, 1065 

Departmental Rules, 891 

Financial Evaluation Division, 892 

Life and Health Division, 525, 905, 1071, 1255 

Medical Database Commission, 605 

Multiple Employer Welfare Arrangements, 76 

Property and Casualty Division, 892 

Special Services Division, 76 

JUSTICE 

Alarm Systems Licensing Board, 351, 614, 804, 1175 

Criminal Justice Education and Training Standards Commission, 149, 981 

Private Protective Services, 802, 1174 

Sheriffs' Education & Training Standards Commission, 670, 986, 1075 

State Bureau of Investigation, 234, 530 



9:16 NORTH CAROLINA REGISTER November 15, 1994 1338 



CUMULATIVE INDEX 



LABOR 

Boiler and Pressure Vessel, 1076 
Mine and Quarry Division, 239 
OSHA, 77, 160, 675, 906, 1258 
Private Personnel Services, 1176 
Variance, 230 

LICENSING BOARDS 

Acupuncture Licensing Board, 44 

Auctioneers Licensing Board, 836 

Barber Examiners, 563 

Chiropractic Examiners, 376 

Cosmetic Art Examiners, 280, 1027 

Dietetics/Nutrition, 1115 

Electrical Contractors Examiners, 1199 

Electrolysis Examiners, 1204 

Landscape Architects, Board of, 95 

Medical Examiners, 192, 565, 1119, 1206 

Mortuary Science, 720, 1120 

Nursing, Board of, 45, 724, 1209 

Opticians, Board of, 845 

Optometry, Board of Examiners, 194 

Physical Therapy Examiners, 566 

Plumbing, Heating and Fire Sprinkler Contractors, Board of, 96, 725 

Practicing Psychologists, Board of, 97 

Professional Counselors, Board of Licensed, 50 

Professional Engineers and Land Surveyors, 728, 924 

Sanitarian Examiners, 730 

LIST OF RULES CODIFIED 

List of Rules Codified, 53, 196, 281, 378, 635, 742, 926, 1041, 1306 

PUBLIC EDUCATION 

Elementary and Secondary Education, 375, 540, 920, 1197 

SECRETARY OF STATE 

Land Records Management Division, 712 
Notary Public Division, 1112 
Securities Division, 476, 616, 709 

STATE PERSONNEL 

Office of State Personnel, 477, 847, 1214 

TAX REVDZW BOARD 

Orders of Tax Review, 415 

TRANSPORTATION 

Highways, Division of, 85, 718, 923, 1114, 1300 
Motor Vehicles, Division of, 89, 276, 542 



1339 NORTH CAROLINA REGISTER November 15, 1994 9:16 



NORTH CAROLINA ADMINISTRATIVE CODE 



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